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AM, IE NT HINDU ‘JUDICATURE 



B, O LI Si 1 1 SiAJAH JfciAQ 







W vs™ RESEARCH ISPTTJTE. 

TlilCHUft, COCHIN STATE. 



K0V1SSJ 



h . w?. i a. 



nmh 



ANCIENT HINDU JUDICATURE 



ANCIENT HINDU JUDICATURE 



’'V'S TSHMJ RESEARCH tt»T!Tttlt, 

Etv ^iruuR cnciHiN gr. — 

a nbmw 

H. (lUKIl RAJAH RAO. 

Pl*frit( M pitilT 



fQJtfZWOJif? UY 

S Ik JOHN WOODROFtr: 




1 



GflNESII ft CO v MADRAS 

t $ a □ . 



MAIIPA? i 

h'llitpl hf Jf 

*. Mfriiit Bu.uL, 




MM VIM RE3BMH (‘"’T'T’JTE. 

1 rich HR, COCHIN ST*n- 

a mmw 



CONTENTS 

Chapter Pagr 

I, Law Courts and than 1 ccmptltntion. I 
IL Nature of Yyavaliaru or actions ill 

general ... ... 5(1 

IIL lnfifitation of actions ,,, 'Zfl 

JV, Special mle^ nk' pleading and 

counter claims ... ... 5$ 

Y. Principles of proof ... 5& 

VL Oral evidenca .. ... 77 

YU. Itac-u mrntar y evidence ... 1(}4 

VIlL Dlvina proof ... 11? 

IX. Some principles of adjudication .., Idfi 

X, Judgment and Decree. .. ... Id-S 

Index ... ... ... ISl 



i v Am mum r 

1R1CHUR. COCHIN si 

a mvaw 



'T'T’uTE. 

\XZ- 



FOREWORD, 

LltTJJE is, I think, known of the iinofont adjec- 
tive 3&w of India, It is well therefore that an 
Indian. Lawyer shmtLd undertake the task <>£ 
telling on what Et waa. He ha--s 1 think* w^U 
fulfkilwi it within the sjhyrt CDropass of th;* 
snvalJ boct + 

Ciunbt 
4 uf*U *6, 1310. 



Jtjtjx wooiJKorji’p: 




ANCIENT HINDU JUDICATURE 



CHAPTER / 

LAW COURTS AND THEIR CONSTITUTION. 

The paramount duty of the king is th« pro- 
tection of his subjects, which involves the 
punishment of the wrong-doer. Tine wmng- 
drier cannot be found out unless tJie wrong com- 
plained of *s ascertained. The Smritie there- 
fore enjoin on the king the doty of enquiring 
nto such Vyavaharas! wrongs himself 

with the assistance of his. councillors. 

spira^rt qrtr^Ti ftrarfeir fkrSh m; i 
nirrirrfj.^ijiii fWitn n 1 

The king should with the help of learned 
Brahma tin decide such Yynvaharas} ■fHrtT; in 
nocordan.ee with the dictates of Bmritie. unruf- 
fled by temper Or uninfluenced by desire, 

The law to be administered is the Phartna 
^astra subject to local and other usages, which are 
Sot icoonefetent with the Sastli-i--. Tin: rLispunsi- 
l illty for the administration of justice rest? prj- 
ruariiy with the king, though lie may seek the 
h’ - lp of some learned Brahmftn&and his jninis- 

■ Itgnnlkyr, Pirt lJ, Ckifiter Ij t. I. 




i jutvieut insur /ODiCfiTTuKr [esAf- i, 

roro in tflitCin^r tlip dispute 1 , Th« kin& may Per- 
manently appoint some learned persons I uillRfi 
'iabhyus . (is members of a judicial assem- 
bly-. They r'rtV^t be wall v rxetl in the Vedas. Mee- 
marn^a frules oHnterprfctation), giftm ini t\ and 
rju? IJhiirmssufetras They must l>e Iovpts of truth 
and lie absolutely impartial. PeiBons ignorant 
of the habits and usages of the country or devoid 
Of character vretg to he avoided. 3 They must 
bo ot least 3 in number according lo Many atld 
o or j accord inp to Rtihaspathi, M«niii and 
Vasin aval ty a insist on the appointment of 
learned Brahmans only to well poe^ mfhito h. t- 
Hiyayana allows tlLt. 1 - choice of any of rSe twice 
horn cLrisjjeo poKiWissiug the necessary '.lualihca- 
'iojis in the absence of learned Firahsnans- •IhC 7 ** 

1 1 vprji n t-d council lors are bon mi to advise the It in ft 
properly arid to enforce thair decision. These 
were aliai required to come to an unanimous 
verdict u£ far as possible/ Beside these, the 
kinjj may choose w<nfl learned Brahmans as 
nmieux vuritB to help him vrith their advice . 1 
Their opinion like that of assents may in- 
ll pence tlie decision hut not control it. Tine 
verdict of the appointed councillors like that of 

J W Ltaidba-rflj BuKDbftf Edkkw,jp*§* tfij. 

4 y* e . p. it, oa. li f. & 

■) ltrLh 3 H]in(hi. 

1 K aitp a} iaa mud IT*wlsi- 

1 ffabLy^yiLii^. 




r.] uw coTHrra and r«nMR co^titctjok. 3 

t h^ j U ry was h i nri i ng on t h'* tin g !' 1 1 n anpr>i n £**c ! 
COunciikn* were either ntlpundiary or honorary 
while the nominated council lot* were .lU’ajr^ 
hciuijmry Thus tiic? court prosit*! over by the 
king consisted of his mi ninEera, his chief r:-r i ljk!., 
and the permum'iit iw'nv of the asHfcnily iiftd 
the learned Rrahnans tnmci&lly invited fur 
the occasion.- The chief ilriftSl advised file 
kins in the evnniise of Lis prerogative of mercy 
and regulated die punishment to tie awarded.* 
For the sake of securing ths confidartift of the 
people in these tribunals the king m iy invito 
to the judicial assembly some respectable and 
aged merchants, of goad family and wealth*. 
They were permitted only to witness the pro- 
ceecUhsitfbu t noi to ta ke part i a tie del I bera tinnsh 

If the king wj*U[iable h owing to his attention 
being directed Co otbor aclivlttufi, ip taka part 
in the Judicial assembly himself, ha must 
appoint & learned Brahman in his place.* He 
was called: Pradvivata ftifrw* [one who hears 
first both parties and clears up their dis- 
puta) v pe #*ft the chief or prasadHiit, of the 
umrimbfy, Hits assembly constituted the hi chest 
judicial 1 - tribunal Enest to the court of the 
In course of time two classes of courts 

1 KiUija/iiija. 

* SiDritblflblriddb, fcfy?er« (Wilign. Py. Eft* pine 

* l£iEir"^»i l l 

* Yntf. P it, OK 1 : T, .3* 




4 AJICILKT BLN DU JTTDICiTDHB. [Oil'. 1- 

canvs into ejcifclpnctf, ont ulus* cOrisislisif^ of 
court? Cffirtiatituted under the authority of Hie 
king. and the other class consisting' of tribunals 
const jtwterl hy the* consent 1 of parlies which 
were 1 therefore fo the 1 n&twe of arbitration 
rnn ns. A e ricu I tu mts* artisan?,, tra dec 5 and oihet 
lahonrinF classes were permitted to Battle dis- 
putr* concerning their professional interests by 
tribunals presided Over by men of dm il nr calling 
as they were likely to understand their own 
disputes better than strangsra. Thi* p^rhap- 
tha origin of several arbitration courts which 
sprang up in Later tunes, 1 Besides these sta- 
tionary tribunals which held their sittings in 
towns nr villages, there were some itinerant 
courts also. Tin- first class of courts comprised 
in order of rank : 

(1) The chief Tribunal presided, over by the 
king hipiselfin the capital of the province 
or wherever he may sojourn and constilu 
ted as Alrtivc doacribtd. 

{2) The court presided over by ihe deputy 
appointed by the king, ended Pradvivaka. 
and his councillors who formed the judicial 
assembly. The authority was delugatfltHo' 
them by the kins authorizing (Iump tit 
writing or hy ihy handing over of hie seat 



« tjyfcra JS’i Lti"-, Ck- V", 9 . 6, i, 18- 




cme. i.j r,iw cornm -rniifi coiitraorrofl. -b 
(3) TJw ftwembl y of inferior .iudtfCS appointed 

by the king find invested with 1-r^al juris- 
diction nwi>r *maLl towns or village*. 1 

The second claw of Arbitration court* ooim-rt*. 
o? (I? (Ponghal, (S? ^p*r (Sreni), (3) 5^ 
fKula;- in gradation of rank, 3 

75 (Ponghaj i: 1 an aisweiation -of persons 
resident in any town or village drawn from, 
various castes and following different jrrofw- 
sions, 

'1-1 (Srenil h :l it ;i5Hemb)y of persons of 

* 

different easles or of one caste following a 
particular profession, such as a guild of hbrw- 
dealers, betel-sellers, weavers, and shoe- make™, 

(3-1 iKulaj L-i n collection of individuals 
who are related as agnates or Minutes or by 
marriage. 1 K.ula l>eLjit; an assembly of the 
kinsmen ot' the parties was the lowers court of 
arbitration which had to be resorted to in the 
first insbini^.. as they w$r* fat jtior^ likely to 
know all about the dispute much better tbln 
strangers. ±Vokc above it was the court of tba 
^iivni, which consisted of strangers, but reside ate 
of the sauw locality. Their decision was likely 
to givn better aitiafaetion to the defeated auttOr 
js tending to ranwve any taint of partiality 

1 Sn. ftti r p. 4]. 

* .'faradfiL and Ya£. p. I J r Ch I. <f. 30. 

* Mit. ]bb„ 




6 IfGHKI muilj JUMCilUSI, [CEliJf. ! 

which might altach in the decirinm nf the Kllfa 
HighcRt of was the Pctogha w hich 
perhaps the most co^mopolitAD in constitution, 
r llit judicial assembly appointed by the king at 
wcII'&h the supreme court of tbe tins in council 
supervised! the wcufc of these arbitration 
courts , 1 

itaclb these sets of tribunals Lad ' their own 
min let trial officers also to carry on the work 
of ( he courts. They were (1) i^T^l^'i (Cr-anakiil 
tbe accountant who computed the sunts due 
as;d prepared dearer a ; N irnu ya Ibitbrfi) j {’2j 
: Lek ha k li} the scribe who ^rdtc out the 
pleadings, fer the parlies; (3) the sequestrator 
wliu took care of the prope rty seized ; (4> B r'MiW 
(tfedliyfipaki I he Eumnruner vbti etiforcod the 
attendance of par tits and (o) sometimes the 
moderator w3]0 »u p<?rv5sse<l tbe entire pro- 
ceedings and discoursed on morality to the 
edification of ihc parties, jwctRCP, and the officer* 
of the court, : The members of the HBseflibly 
gave their opinion, the president pronounced 
hie decision, and the king enforced the decree. 

Similar in eompcsilaori were the infeito? 
tribunals in each of the various sub-division^ 
nf the province. According to the A riba 



1 Mir, png? m 
* BiilHwpatbi 



* bin. Cl?. <ijL '6 , 3 ! 5 . 




CBit\ l] LUV COIIKrS AKIJ THMK COHHTJ'-riJTHJB- 7 

Hutlhra f-iLch. province was divided into a 
Sungrahana, a Khurvatika, « Dhronjnraakhrt 
and a Sthaniya. A Sa ngia bar a was the centre 
of a Rroup of ill) villa pres: a Kharvalika of 20H 
villages; a Dhttmamu kha of 400 village; and 
a Sthaniya or Mil) villages. ft is surmised that 
ft Sangrahana v^-ias; l he lowest unit of village 
adlQ ill iatration and that 90 Sangfahanafl were 
formed into a snh-di vision called Khsrvatika 
and that 2(1 Kharvatlkaa Ounstituttd a district 
called Dhrrtnamukha, and (Sthaniya' a province 
congsted af two such diitricte, In each of 
these units of ad mi nist ration commencing from 
the lowest, similar sola of tribunals, each 
consisting of ?> judges, were enaslit Utcd for- 

carrying on the admioisf ration of justice a 

fCauiily il's Art tin ftitathra describes two claries 
tif marts called £[%fk and Dhar- 

masthoeya and K an taka Sodhanu us pr& valent 
aL tUal [imu. The Dharniasiheey a courts were 
the regular r:i v| | courts which had jurisdic- 
tion over the administration of civil and cri- 
minal justice, in respect of ordinary matters. 
Tho Kan, taka Sodhana which consisted of S 
Commissioners i^^rr: Fradc&ttira*) seem to 

have eaerdaed epecial jurisdiction over matter^ 
commerce and industry and prevention 

1 Mt. Saici fsi-lry'rt trnndEtko of Artha ftisflrju Jlnpk 

111, Ch. 1. v> I, flenii 1] Ci. 1. r. 163. 




a AST-]] ENT B in DC JumtarCEI. [-CffAF. I, 

uf brsach cf the pence and determination of 
grave offences; against the State- They S3 w 
to the enforcement of oon tracts among arti- 
sans and to the regulation of their wagw 
and kept, constant vigilnrw* over the dstootion 
and prevention of heinous crimes . 1 Tlnwe tri- 
bunals are not referred to in the Menu Spirit hi 
as&lich COurte Of exclusive jurisdiction appear EO 
have sprung up later with the further advance 
of civilisation and ooRswjnent spread of com- 
merce and. industry. Tho Menu Smrsthi simply 
refers to sonic of these disputes as matters for 
the decision of the king 

GvihasTMirti divides courts info four ciosPK?, 
fcJAi^l) moveable courts, stationary courts. (3) 
courts deriving authority from tiiD king, and (4) 
courts presided over by tlm king himself, He 
mentions 3 kinds Of itinerant eunrt^ vts^ one 
in the forests for the benefit of fonstert, one 
aiponii the caravanserai merchants, and one 
amnids military men. The court presided over 
by tiie king himself may be stationary or 
moveable. It may be held wherever Hio king 
may sojourn. The other courts vorC all 
ata tiona ry. s 

According to Bhrighu, there were 15 kinds of 
court*:— The 3 itinerant courts mentioned 

1 Nsgond nwiith Ls*-'a Aaseot ilifldy 1, pagm 

110 and 120. 

1 Sm. Cb. pajp 41. 




i..J law cat arc Aau rjirut chmejithtioK. 1? 

abov*, 4) tli* courts prewidad ovwr by KSideiJls 
of the neighbouring villages in disputes about 
village analtwni, (5i a court prasieJed Over by 

persons chosen by i*>th parties amorair kiiipmeu, 
(6) among merchant or (?) anions townsmen, 

[Si courts presided over by v i llngt! rii, ,G) or by 
townsman, ( .101 or by swvera] families, .It} or by 
guilds lij ur by persons learned in the four 
sciences of polity, 'l-'!] or tjy KijUkas, (1 4) courts 
appointed by the king, and |l5j the suprorrus 
eoui't Of Low king. Excepting the ]&st two, the reef 
we™ arbiteftfion tribunals which derived their 
jurisdiction from the consent of tJie parties and 
were fanned whenever t, lie parties chow, 1 to in - 
voke their aid. Out of these tliu firfl Sve were 
itinerant courte These arbitration courts were- 
empowered only l* decide but not to carry out 
their derisions, Their jurisdiction was also 
ousted in serious eases of crime relating to vio- 
lence, theft, t: la:. 1 

Tile stationary Courts were required to hr 
held every day in the morning except Oil 
certain Thi thins {Chu thuoiftiii, Amav-agya, 
Pournarnt eind Aahtami Th - hour of hold Lug 
the court was fixurt at 4 Indian bruins after 
sunrise, making allowance for the time taken 
for morning ablutions.- 3 

I SllIK, OSi. J.KI "|_- -jj-ft. 

1 dwMffba. 

■ B if,KL-!i Hi K! Uhrtji-n a. 




IS iHflllMT fllEHUU mUJhCiiTUflS, [«n*t r , &■ 

The king nhiill not try ary dilute fixated 
by himself or by bis a gctl ts among Hie subjec IS. 1 
W-nr tihall he out of any improper motive fejldllire 
into any dispute sot In 5(3 before him by the 
agf moved twrry or bis recognised agent 4 There 
are however tome oEceptions: to this rule which 
cover beinona offences against t Lie person or 
majesty of the kins called ^ (Chain i and 
certain grave offences against society called 
3?^i^ [Aparadhai and minor offences called 
(Piida . Thesw offences were investigated 
and brought to the notice of d^e king b> T 
hired apiaa and informers, Kxuept oil such in- 
formation the king could nut tuke cognizance of 
any complaint on hi* own motion. Excepting 
the parlies aggrieved or their frknrb and rela- 
tives duly authorized |to appear for them, no one 
else was permitted to apTieLir before the king 
and tile a pi nil it or complaint 1 

An action attains finality ei Flier upon a 
verdict given on the pleading? or on ora! 
evidence. The former is called (Tbecntlia) 
while ttie latter is called fAuwiste'-' 

Judgments, the parties to which were either 
mad or deprived of their senses or afflicted 

* Pii Liitah:, sod Mftiiii. 

■ Mbuv, Ch. 9 v. 43. 

* fim. Ch. png! 1 fl£- 

* Narnia acid llaac ; also 3m . Cb, pogo 




CUiH. |.J LiK CMMS i3fl> 'JHIIK DOHSTtfflllOM H 

with mental distress at the time ( 5 If trial 
war* infant*, old people, or dependent* upon 
others,. Were net binding on them . 1 Also fl 
dscision which was on the face of Lt ftmblgflOlK 
or to which !he perFson-^ affected thereby weft- 
not par tie* was not conol naive. Judgments 
passed In respect of j»*rB»ns who could not sue or 
whose complaints could riot ba entertained such 
n* enemies of the country and persons exiled by 
the It ills liad no validity . 5 Excepting under 
th?^e circumstances u judgment wm* always 
conclusive and was not liable to he set aside 
except by way of {Poonsrnyajfa) which 
oom prised both review and appeal 

RfcVlFW- 

The decisions of all th,£> courts including tll^ 
ilifr host could he altered or. review by tliO same 

murti if ■w-tm wrmm-U far cl^iLiltTiviir its 

■mnnrlnuM.. A voifd!icx h-jvhja an acaount oil 

compulsion or fear brought to bear upon the 
courts could be modified m discovery of such 
extraneous influence. Decisions in cases ot 
occurrences which took place under suspicious 
circumstances at night*, or inside a house or 
Outside a village* which showed conceal me nt of 
the real facts from the courts might be subject to 
revision .- 1 

i Y*g.P. IJ.Cs. It. *. 3 V. 

1 Mum* 

i Tag. P.Il.Ch, II. t. 31 . 




IE 



asurnflT uinuc j duhtatH re. 



[mar. tr 



Appeal . 

In other casws. ft party dissatisfied with a 
dsc: [sum may appeal against it to the next 
higher trihunal, 1 la case of rikcomk of the 
appeal the members of the judicial aesirmbly 
whose d«jsion waaujwet ill appeal were liable lo 
a punishment nf fine for their error along with 
the party who secured from them a wrong 
verdict, ip his nwp -favour." The fine was 
double the amount of the claim. The punish- 
ment for corrupt or perverse jndffmertt WAS 
twice the amount of fine in flirted on the 
unsuccessful party. 1 jf the wrong derision bar! 
been arrived at op false- evidence the witnengea 
alone were punished. provided the party harl poL 
beep g U Lily of procuring perjured ten t imony . • 
So appeal was allowed in cases where ft verdict 
was based cm a pa rty's ow n admissions. ' A ppea Is 
preferred without any grounds to sustain them 
were punished with smtilftr fi n fK. 0 

To the case of the regularly constituted court* 
under the authority of the king. tuiyiCjS I lie* 
from the lowest of these to the ae^t higher 
tribunal up to the highest. Evan against 

s lljihn .1 piLtbi. 

! Nn-rdi n"wt Kitty tj no* 

1 T»g. P*rt If. Cn I. », 4 . 

+ £nu Cbn pme 8 US, 

* i'are-dn. 

Xanda itral Yag Part II. r, iOG- 



1 




CHAP. [.] LAW CO?.' Hrrs XTi □ TKK1E C<MfETLHJTlO&- IB 

the decisions of the highest judicial assembly 
appointed by Hie king, appeal could l>i ■ preferred 
CO tllO ting in pprann, according to Narada. 
while other Smrithi writei , s make the deeWon 
of the lujjhe^t judicial fissotitbly final, Appeals? 
are permitted even Eianinst the decisions of 
arbitration courts Appeal may be taken from 
the KliIei in the Srotii, from the Sreni to the 
Poogha anti finally to the judicial asseinhly 
and the king'. The king was assisted hy a 
Privy Council which consisted of li or I ft mem- 
IkTS as :il the time of the MflUrya Dynasty.' 

A suit once commenced did not- terminate 
with thv d-aath of the suitor hut could ho 
continued by Or against the ho in? of the dcoi^asod 
porty,- 

Notes to Chapter 

1. The composition and MlntitUtioo of die 
ancient Indian Law courts reveal certain 
important oharaeSeriatica which cannot escape 
notice. Ill the first place they were all of them 
in the nature of judicial uaMsmblits or pnnolnv- 
v ate presided over by several judges and none 
lh" rifle no resembled the present Indian tribunals 
p resided ever by singLc judges?. It would he 
interesting atudy to trnoe Hie origin and 

; VinoeoE S iiiil/n Lfiitorr of AdcL«qG lodia. 3rd, Kao 
pw 140- 

1 F arids imJ, Mitaiffllar#, l.'SC, 




34 ABCUHT H[«D3 nrmciTDHH. [€«*?► : 

development of the single judge Hyatenu if it 
•'vcr flidstud in ancient India which thy British 
C ! (iv*-n i tlH’d t lias I ntrnd need into all tile sub- 
ordinate cour La except tin* highest. and which 
a go ms to uo neither indigenous nor to ccirrtispoi'Ld 
to the British system- PaUamaha distinctly 
prohibit ^ single judge trying a clause. He 
*ays that a prudent- man should not trust a 
single judge however virtuous be may bo 
and that in every taw suit the deCBlOIl ot 
SCVCtal persons commands "l'PHter respect th&ti 
that of a single person, 'file ancient system of 
judicial administration in India seams- to 
correspond more nearly to the British judicial 
system consisting of the judge and jury rather 
than tothe presen: system. The inconvenience 
of a single judgf" i-ys&em is too patent for notice 
just n* tlie advantages- of a judicial assembly 
am too obvloua for mention. The success which 
apparently attended thu ancient system must 
at any rate encourage those who feel any doubt 
about the efficacy of the pa.ncha.yal system in 
civil disputes and also establish the claim for 
the extension of the jury system into at least all 
criminal trials. 

2, These ancient judicial assemblies ware 
alao sufficiently representative in tbeir character. 
They included not only men learned in the law 
but also representatives frarrt the prpfeRftiofiF: 
[ild the aristocracy. Sacli a varied composition 




cisam, i_] i.aw gurftr^ /lhd JXKtK comiTiTrafliH. 15 

of the apembly gave it ah amount cat elanticlity 
which is denied to the present law courts with 
their hidebound ruh^ and forms. They are far 
more likely to appeal! tn the i mafii natioti of 
the people and to inspire con L(Senr:a in them. 

3, The differentiation belwoen criminal 
courts and civil courts- wan unknown, tl tough 
the difference between a crime and a civil 
wrong was not absent from the mind? of 
the ancient I aw -givers. They *W0£flised tlio 
difference but aettres to have cnLrnatcd the d ; s- 
gharge of +H)th ilm functions to the -ami? 
tribunal:, perhapH in the interests of economy, 
if not of efficiency as well. Tn modern I L ines 
also, such a combination may be trust ed to 
ooeduc* to i same results .Advocates of the 
separation of judicial and executive functions 
under the present system of administration Lu 
India may find support for it from the ancient 
syatem which <n'cttis to have worked admirably 
widl, Elaboration of the scheme by which 
■civili ftnd criminal administration may be made 
to vest in the same tribunals separate from the 
purely oxccutivc functions of the State would 
bcToreig n to the scope of this discussion. 

■i. Besides the regularly constituted courts 
giving authority from the king, there waa 
a regular gradation of arbitration courts ip- 
cqgaiaHl by the State and resorted: to by tho 




ili AKCltSf H 1*1511 XL Die ITCH F . [CMiF, 1. 

people;. They were permanent institutions 
which worked Hdo by side with the legally - 
L'oniatituted tribunals'. Consent of the suitors 
invented them with jurisdiction, while the State 
gave legal sanction to their decisions. They 
were hIshx tinder cLe direct supervision of the 
State and free scope wan afforded ti> the parties 
dissatisfied with their vend Lem ixj go up to the 
highest legally constituted tribunal. The ohsrr- 
vatkmsof Sir Thomas Mumro amply hear out 
the Buccesiflful working of these institutions even 
in the early day h of the British occupation of 
India, when the disintegrating forces owing tc 
the misrule :if previous Icentarum had already 
begun to do their mischief and disrupt village 
organisations. 

1 1 is clear that these village organisations 
ojtisted in at I their purity even during the time- 
of the t’hola Kings of Southern India in the lUth 
, (Hitury A, D- and contributed to tba efficient 
ud minis tratien characteristic of that dynasty. 
They exercised oxcexieivft administrative powers 
also benidfi judicial functions, Referring to 
these institutions, Mr. Vincent Smith says at 
p: 4 je HS4 of hie Early History of India, 3rd 
edition : Ll It is. a pity that this apparently 
excellent system of Local ^elf-Governtnarslh 
really popular in urigdn, should have died out 
ages 1 ago. Modern goveruKionEB would «be 
happier If they could command equally effective 




USI.MV l,J L-iH aKii : cl £ I li CO)Si,1 t tilt JO if. 17 

agency." TIip records about Tr&vartOOrH eta ting 
even from tha 1 'It h con I ur j A . D. reveal th t eue- 
oesflftil working of tiiese village committee 
which tended to control whal is now Li?ua.JLi 
called the benevolent autocracy of Native 
Rulers. Ira van core, having been singularly 
iminun from foreign influence for long age? 
post, .is often pictures ricly described «h " a idiert 
epitome of Ancient India 1 ' and may tw taken 
to represent (he actual conditions pre vailing Lj- l 
the rest of Ancient India, The authority of 
Mr. Vincent Smith may again he cited in 
ynp[>eri of this. He says at p, 45L1 ufliis Lotik : 
"The details of the working of Ule! village 
association^ or assemblies aro specially inlero sit- 
ing find prove that the Government was by no 
means a merely centralised autocracy. The 
village assemblies jwssessed considerable ad- 
min iterative and judicial powers, emoiKed 
under the supervision of crown officially’' The 
achievcmuntfi of the post justify the donumds 
for the r eti Limitation of village organisations 
and foster the hope that under proper State 
control, village autonomy on healthy and 
progressive lines may fjtitl he developed in 
Itrtiia. 

a. The ancient law provided also ample 
ferTtEsiy for the rectlfloation of the errors of its 
tribunals, it would have been observed tliat 
under the Ancient Hindu. Law. a party 




a rci Kii’i nisi'L' j l ! hio i i u 



IS 



[cjiiaf l l 



dbemiHtied with tho decision of even t-ti-e lowest 
court could seek redress either by way of 
review or go up on appeal to the protection of 
the highest tribunal presided over by the king, 
irrespective of the value of the property or the 
n u tare of the c la i m, An cion t i sla tion „ w hi I e 

recognising the value of unrestricted right of 
appeal from the lowest to the highe&E tribunal 
as an efficient, cheek upon the prepur adminia- 
tration of juRtice, sought at the same time tut 
restrain its abuse. Nothing (HmduCeS more to 
the purity and soundness of administration of 
justice than the wholesome influence Of super- 
vision by the higher tribunals or gives greater 
ualisfaction to a defeated suitor than the 
concurrence of several tribunal* as to the 
merits of life claim. The ancient Law tried to 
provent such a valuable privilege degenerating 
into encouragement of unrecemary litigations 
by punfehiTTg the unsuccessful appellant while 
it punished the erring judge us well, The fear 
of fine restrained the speculative litigant from 
indulging in the luxury of appeal while tho 
prospect of punishment sharpened the wit of 
the judge sir awakened his dormant uonscience- 
judge in modern days can of course afford 
to eon tern plate with equan imity his position 
under such a law. The feeling that a judge is 
always on hfe trial rather thin the raw before 
him is not likely either to let him have ;i free 




:T: Hi i>. i.j ut Gainers i:iLh fiitut tye*iiTWHHi r I J 

hand in disp^n? i rig justice -nr to gif* hiirt an 
■euajf mend thoretiftor. Though thin may liars 
a queer a£pee t nuiV, the corrective [nfluOifc?* of 
po«dhte puniiihTil-Snt in Home form Or Oth for 
manifestly psnpfinw judgments or corrupt 
TRrdicEa in, not bn- hi; ignored even irt mod 
days. 

6. Th-eaneiant law-givers attached, consider- 
able importance to the pure and efficient, 
administration of justice &* an Important 
function of tlie sovereign. Mann, while c*- 
tolliDK the purity of j usticre as a di vi no a e tribu to, 
apportions the blame for every unjust dedsion 
bh fallows :— One- fourth of the a in goes to t tie 
wrong -dour., one- four th to *he nn truthful 
Witness who contributed towards huc-Ii wrongs 
decision, one -fourth to the judges who actually 
decided, arid on C' fourth to the ting upon whom 
rests the ultimate responsibility far Mu* entire 
judicial administration. The king earned the 
merit nf BOOtt gbvHrrim«nt and a] SO won tllG 
attachment of his people in this world while for 
his mal-ad ministration he had to pay the 
penalty 'in the neif. Tnough the judicial 
.assemblies derived their authority from ton 
kiEiR they were sufficiently independent, They 
were enjoined to decide feiirleK}ty L as OtlierwinH 
(hey shared the sin along, with the sovereign. 




CHAPTER U. 

(ACTIONS}. 

A (Vyavaham) or a dispute is denned 
by Katlsyayana as ihe charing: up of the 
doiilit amidst conflicting stsfemente, He (fives 
the derivative meaning of it aa follo^a 
1% I 

3HTtfVf T^irS^MTR Tfcf tl 

But a. icero ju sr^t-ic definition is the one given 
by VLgnaneswftra in the Mithskslmrs, Accord- 
ing to him a * £ T'£¥R ;Vyavahara; is ft dispute or 
a cause of action consequent upon ft wrong 
alleged to have been committed by one on 
anotbe*- 

3TP?fai}^T 5^1 ( 6 

A VyiiYuhara is begun by any one, com - 
plaining to the king about any act done to h:rn 
by another which ia opposed to the conduct 
laid down in the Sm^ithia: , Tbia ia ths plain t 
or the complaint as understood now. Each 
Vyavaharn has four stages to paaa through, 

1 r JT^ITT Prathign-B (plaint or complain t). 1 f 

* K’ta, p^rc tot, 

* Tug., IV* II a Cfcu I P t.-S. 




II,] 






J:L 



i& il&o called tfPTT find 7¥f Bhasiia Altd 
Pakaha, 

2. ITthara ; writ ton statement). 

3. flUTPsaT^TffiT Samsayahethn ParaEnanffii 

{wpi^ liirR of er id pncej . 

1. piufrrjirm Nitcl ay a Pramana (final oort- 
elusion) 1 . 

Vyovahar* is of two hinds* Sun- 

kabtiiyega. and cVc^lfirqlTT ThathYabhiyoga, 
according to this nature (?f proof it is 
smceptible of. ^rP-TTlfT SLiUliabliiyDga one 
whit'll hu3 CO ho determined oil cinniin- 
stantia] evidence and probabilities Thathwi- 
blliyoffil k Oils Which can he tie torminad 
by direct Cviil-urioL'n <uo!l a* stone or brick 
which .iseil for assaulting :-l nun with. 1 
TbfltllVahliiyriga cfHZr^^ffT atfitill isof two kinds ; 
b^ITin: 1‘rnthKheJhathmakaand Vidh- 

yatlnnaka, Prattlishedhaffomaka is 

one where the right of another to Hits property 
is denied!, ' VLdhyathmakaf^irrwt is one where 
an overt act is done in respect of th« person or 
property of another. The former arises front 
The denial of a right while the latter originate* 
from the commission of a wruiuj, 3 
Besides these regular action^ lharc wore 

t Miihkli , fn*e E09L 
1 Jf&pidsi, iU<n- l. v, 47, 

* Mitil., |:^ji 109, 




IS AirtujT irrBivir jffiMQHM*. [CIIai - . n. 

some accompanied by deposit of money by either 
party aa guaranty of the truth of his claim, 
Theoe were called P<nit ^^R iSopuna Vyava- 
hara), 1 Naradft cl-flfftlfieK them a& pftT? 5W;p 
Sottlmra Vyavahars apd IIJVVnR (AnuttharO 
VyaFaharaJ. 1 This f"! or depoRit is to be made 
before- the reoortlinfi; of the plaint. Either 
party or both may deposit and the deposit *0 
made is forfaited to (bo king if the de- 
positor fails hi establishing hie case. The 
forfeiture bo entailed is in addition to tlie 

usual penalty inflicted ort the [Lnsueressfiil 
suitor. The classification of this kind of actions 
into Efle?l7 and 3J3 tT{ by Nflradu is 

interpreted, by Rome ae implying that thtte 
demanded bettor attention at tho hands of llio 
king limn ordinary disputes. 

The*e disputes together mainly OOnstitu li- 
the IS formo of actions ftt iaw specified by 
Mmu," Thoy aro ;— 

1 r *prFrt^ r-tfCuvery of debt 

£■ ftfri bailment 

3 mMm HHllmg property not 

one's own 

4. ^affprm partnership- 

1 T«g-, Pint I), Ctv. 11, r- 16. 

1 Jfar&dEi, CL, l f t, 4 




CHAP, it.] 



A-CTlEDie, 



•■a 



5. TETmTw 


non -completion of gift 




by delivery, &c. 


e. 


withholding wages 


7. af^Eqr^iT; 


breach of agreement 


H 


sale and purchase 


9< fflfalHtfcftTO 


di>ip:.itR between muster 




and herdsmen 


10. 4talft*TC 


boundary dispute 


U. 


assault 




^iander 


id. m ^ 


theft 


14. hfsw* 


vithlanoe 


15. sjfmirittr 


wrongfully rating a 




woman 


15. 


rv ia Linn of husband and 


wife 


17. ftupr: 


i nlieritancs 


ty- 'fflffflUT; 


gambling 



.Mirada mentions 132 forma erf settops wliicia are 
subsidiary to the ntxjve and come under their 
general classification- 1 

There are four ways of terminating a Vya^ 
vfihara or dispute, ft a rad a tays- 

vhu Eqqf??^ =drt4 rr^NJtHd L 

pb.tplL-T L. p. I'j. 



» N.'irtdu, Oh. I, T, ai uyVi. 




ANCussr ft mm' iUflWArDnfc ■ -.'ii a i- . jl 

They are* (lj ytf abstract justice, i£} ^^^dvci- 
aino. after contest. \3) srfts written tflw h local 
Ufi&gt, and {i- order of the king, 

(Abstract Justice} demands the detection of the 
wi-OBer-door and the vcRtjtutioil of property to the 
rightful owner. The term Vyvahara is in this 
connection used in. the restricted sense of the 
trial -of a auiu V"yavfi(iara helps the attainment 
of such justice [f pursued in accordance with tire 
n (I of procedure laid down in tin- Sunn lb is. 
Both are liowsver subservient (o the local usage 
Or Custom ■which may terminate the dispUt^r 
In Ibc absence of these, the co-Tuiiaand of the 
kin^T which is nof repugnant to sacred law or 
natural justice becomes? the final word. 

Each of these again is sab- divided under two 
heads; ynprJjij (Dh&rtua Nirnoya) h of two kinds. 
Ascertainment of truth after full in veetiKatlorL 
and elo&e reasoning verified, fey solemn affirma- 
tion is Dhuvraa Klmnya of the first sort. 
Adjudication by admission of tin* adversary or 
by Divine ordeal is the second kind of Dharitia 
Nirnaya, The verdict given Ht the con- 
olusiiof] of a trial after production of human 
proof is Yy&vabaroi of one sort. Verdict given 
against a party on account of his prevarication 
oi fraud is another kind of Vyavaliara. The 
decision arrived at by inference from the 
’written law is one form of Chwithram white 




rmic u.j jktntijfs, 

that id aeccrdann e with local custom is another. 
t ” — I 

^ «r 3 Rrrer 4 

_J _|_ _j 

ill ii I 

ppm "i^r^ JuJojft 

ftfarj($**prr"t) FTHq-frrTT^ 

The direction of tint! king in to be nought not 
only Id the atnienCP of any rauOgnizod proof but 
atsp in other cicrna of disputes. 

Though Nhrada mentions, the four modes ot" 
termination of a Vyavahara in the amending 
order of merit, still it must bo construed in 
accordant*; with the rule of Yasnavalkya which 
gives, the foremost, pia.cn to the ftscertai iimen t 
of truth aiOTt from 'all technicalities of law. 
Yagnavalfeya *ayr. -_ 

fernt ifa? 

The king shall set at the truth of a ease 
avoiding all frauds. Therefore Narada must ho 
understood to say that where the abstract 
justice and legal procedure conflict— expediency 
demands precedence being she am to form* of 
kw. 1 it d iep n ten a tncmf; merchan ts h cara va nsa ry , 
military mem eic^ local itf,ir-p shall prevail over 
forms of procedure and dictates of law, Erihatf- 
natE’also endorses this view. All tlieae ideas 

1 Yufl, PjtI H, [Jb. i | , r, 13. 




at .iscx'M itisiid JDii&CiZtia*. (cbkv. jr 

art; pictui-tsqn*]y described by Namdfl attribut- 
ing to justice the form of a bum tin. body li Living 
four Feet, viz. i l) Dharma, V yavahara, ;3) 

t-h.9rit.1n ram. Find [A’ Raja Sruyuia; Dharam 
r*^t i Tsy on truth, Vyavfiharfi resting on proof, 
Cbarlt.hrarrt on written instrument and ] lajj 
Kaxanam or the (vnrnmaTid of the king. Tt may 
employ the four kinds of weapons ; Sana arw. 
Dhaira TR, Bhada ^ 5 , Dands viz-, concilia- 
tion, propitiation, reparation, and punishment 
far achieving' its ande. It must conduce to the 
benefit of the four raates and four order* The 
(■food and evil -efFectR of it extend to four 
quarter?, <v‘z n iho paiftiw, witnesses, judges, and 
tho king. It has b hrntw consisting of il) the 
kijiK, ;3; the chief judge, (tt) mam here of the 
assembly, (4j sacred low, !o} the scribe and 
accountant, {G? gold, C7 1 fire, and iB) vTatW, U 
has its origin in the three mental qualities of 
itru f tIvt. and »fJJ, love, hatred, and grped- It lias 
two entrances, eiz., (If the plaint and tbs reply, 
and Lt has two exits, tis. k by the truth being 
eventually ascertained Or by tile fraud being 
finally punished 1 . 

Each Vy vahars, 90 described In general his to 
pass ch rough four stages; ilj Thu dispute begins 
with the qrer Lalso called ig or wf^^rT} when the 



■ Narsdi Ch, I. ?. 11, Ml, m hiStf. 




cmr. ij.J icrtijWH. 21 

plalbt or complaint U laid- (?) Tbt next stage is 
for the advaroary to appear and file hit ■'Wm. 
Utfcaraor written statement) Tho third stugc is 
called 45FJ^7rr¥51 or the weighing of evidence 
and fourthly it wr mi nates with srrra 1 i proof 
and Inal conclusion According to fCathyayana 1 
the third stage is an lied rr- ^fe ti Prathyukalithia 
which I'JltLina the determination of tile burden 
of proof. JiLieh of these will he dealt with 
separately iu the foitowing chapters. 

The suite were taken up for trial either in 
the Order ftl time of institution, or according 
to their importance, The u^ual order according 
to institution wait varierl in ousts where 
injury to tbe pri'Wii was serious or the gravity 
of the wronp was great. Sometimes prece- 
deuce waa shown to suitor* of superior cus tes 
also .- 1 The king should endeavour to dis]K»e of 
the Suits as speedily jis possible as delayed 
justice detracts from iteYoal value and may in 
some cascH lead to actual injustice*. 

[Votus to Chapter ] I . 

Hie action called Haphunsi Vyuvsharc* :arcofn- 
panied by deposit of money) referred to In this 
chapter may look strange us involving o curious 

* Fug, Pirt 1L Cb. i. r. a. 

J . Sia. Ch„ pa?n S7. 

* Sufers JUthii Ch. IV £Li5.SrCtiiift F. v. la*. 

‘ Sokrij XnJja, C (£!?, 




APCVEFT SCI W m: JtUMCiTCRS. [CBil - . [ I - 

procedure, it nutst have beeo rontr avert ati 
ten dins to prevent vexatious litigation while St 
may also indirectly enrich the State coffers. 
Asa source of State revenue, it may appear 
novel to modern thought while perhaps it may 
takftn to afford us one more instance of th^ 
rapacity of the ancient Hindu kings, Put a 
closer crc&mi nation will reveal the striking 
resemblance: hot wean it and some forms of 
disputes recognised by modern law wherein th* 
deposit of the suit amount or cost* is insisted on 
uefore actual adjudication as proof of the 
ferw fid?!* of the claim. The tnodem system haa 
earned no doubt the merit of generosity in not 
permitting the forfeiture of the deposit Lit 
favour of the State hnl it. cannot claim the 
credit of having put, down VHistirtiS litigation, 
The additional income which the State derives 
by avoidable litigation is morally less defensible 
than the forfeiture of such deposit^ It in 
Wcnrthy Of oOnsidCratiOn whether the adoption 
of some such principle may not tend to check 
need Lees litigatioii without unduly crippling the 
State revenue. 




CHAPTER Iff. 

INSTITUTION OF ACTIONS — [ Ifyamimvi}. 

GENERAL RULE n OF PLEIIOIWQ 

FiUtlti of the pUtinf or campiaini tmd 
th *' Ojtjisv ranee of the adversary : — V y avflbata Or 
EtCEtOrt vs OOimnefl&cd by the presentation of 
jrftl?tT { FVu til ifi na) wbidi is plaint Or complaint. 
Ancient Hindu Lav.- made i]0 distinction be- 
tween civil and criminal coutte a?, luring 

exclusive juried ir.tion, Hie person aggrieved 
should hiniadf complain in penfeE] to the king 
mil not through any agent or any servant of the 
king- Ha might however authorize tiny of fois 
friends or relations to lodge the complaint nnd 
the complainant was- to be toid not to be afraid 
awl wu ,; asked to freely give ont Iris grievance. 
The person against whom the com plaint w«* 
lodged, might be Onc r two or more. If Itie coil]’ 
plaint was found to be a reasonable . one, ati nt- 
rfiOtlS with the seal of the king was lEiwed to the 
adversary with the direction to. come and 
appear. If the adversary waaone against whom 
such a summons could Etoi be issued^ it was 
withheld 1 . The eutafonce of ilia complainant's 
statement wne reduced to writing by t]je (scribe 



1 Mihkh. page 110. 




30 iacLKKr ttilfin? j U' i>u..;h. i ij n±_ [cltir, in. 

of tfiO court on a. slat * 1 or plant and if t^i h: 
assembly anri the learned! Brahmans thought 
after careful consideration his grievance was a 
real oue f either the sum mo ns as aforesaid was 
entrusted to the party or the court summonar 
was sent to fetch the fufversflry 1 . The following 
are the persons who could nol 0'' compelled to 
appear j — 

An infirm person, a child, an old man, one who 
ia in an inaccessible place, one who is in mis- 
fortune, one who is engaged in Study, One who ts 
ip a harry to do any business. ,.mle who id 
distressed in mind, choie who are differ to downy 
businotK for th* L k > Oi-S or to nolnbrate Arty fcetivul, 
mad. men, drunken irwn, careless men, men 
afflicted by misfortune, servants, a young woman 
who hut boon newly shorn ef her hair, a woman 
born in a rcS|>OC table family, A Woman who is 
in confinement, a Rivl of the IligliOSt custc, and 
noble men of lligl) oastc, Tin’ dependenta of 
these nobis men, women of dissohito character, 
prostitutes, persons of low families, and outcasts 
could be summoned to appear* Under excep- 
tional circumsl Alices even ihey who hud been 
eaecltptod could be compelled to come in con- 
vc y Line iva. Ancient Eiindu Law knew no d ia- 
tioction between a aummona and a warnint- 

J Tag. Pont If, C&- I, *- d ; Sj 4- Ch- |3n?r 7U. 

1 Mitt, jwee lid- 




UfHTlIIllW OF ijCTJCBIB. 



■ciiP. n i_] 



HI 



£very writ iw™ed was a warrant A warrant 
called ■ V -ii.'dfi > a> H.otitaiiwd direction* as 

tori) the pJjaco of confinement (imitation 
■aftimefar appearance* and s.3t prohibition against 
departure from a place* and ■ 4 ■ restriction from 
doing some particular net. 'The person sum- 
moned should not disobey any of the directions'- 
Whoever disobeyed was pumshed* as the 
summons was an order of the king*. Sd also 
those who procured improper service of Hammons 
were pnaistaed J . Disobedience of RirmnoiifJ in the 
following rascia was excused. When EMSCOkb wUa 
prev. ink'd bj ! floods or impMKahle forestK or 
aafldji tracts or obstructed by mhljera or alien 
army in the way Or when one was desirous of 
marrying at when one wn* afflicted by disease 
or grief. Or what] hr was oimagetl in sacrifice or 
in king’s aarvicB, ha jiocd not attend i ho also 
minors, mestsengerH, pumons tend mg' Cattle, or 
afirrculturists watching crops, aonlptors actually 
engaged in work and persons uarrying arms in 
battle were flsompt*, Persons summoned in 
one action could pot at the mime time he mado 
to appear in another action. These persons 
whe^ could not bfi compelled to attend might 



l XitjhU, fib. l.f. iii . 
Vjaifl. 

* N&nda, Oh. [. t. 

* -SurjjJa, Cb. L e, jil la Ei. 




:*B * sci e k r h:jidc acmcAnntf- |ra*.i-. nr. 

ask howevE r one of th (dr kinsmen ora friend 
to Appear for them or lie allowed to appear 
after their special avocations were ended or 
their disabilities were removed. Also one who 
was not conversant with the litigation or who 
was engaged in some pursuit might depute a 
competent person to represent bs tn P whether 
rm plaintiff or defendant. Such right of re- 
presentation was not however allowed in serious 
crimes such as murder, theft, adultery, out- 
raging or enticing away a girt, defamation, 
forgery and generally offencps against the 
State . 1 The agents so deputed were not guilty 
of appearing for another mane cause, for 
ordinarily one who had no internt in the 
litigation could not appear for another*. 
The aummoner was called aptfl Artbi (one 
who has some object to gain t ij*.> plaintiff 
or complainantl and the anminoneo was called 
taccuaed of defendant). The Arthi or 
plaintiff may leave the conduct of his action to 
h ik arm ot grandson, so also the Pralhyar- 
thee (defendants may depute any one to repre- 
sent him except in serious eases of crimes or 
matters of grave importance. Though both 
parties may thus he represented by their agents, 

1 Snkri Nlfthi, <%► i 3nt+3«, w r. 1J& * 120; iho 
Sra. C J h fa KB i r ' 

* os. ii v ; 23. 




CHAP- IF! ] IFHIIVT1C5 OF .1CTIOFS. -C? 

still the finni decision would hind the actual 
parties' Such agents vfpw entitled to romaner- 
ntion fit rote* varying from An iV i, up to i 
of the suit amount. In the ahseneri of the 
remuneration they are on titled t<> sustenance 
charade?. 

After the apnciiranea of the adversary in 
court eaeh party in called upon to find a proper 
surety For payment of the decretal amount or 
tte fine inflicted hy the cdurR Tf m surety is 
forthcoming the party shall pay the daily batta 
for the peon who beeps him in custody until the 
actual deposit of the amount claimed*. Tha 
f|Ua]ific:ati.imfc of competent Sllra tics are In it] 
down hy Kathyayana. 

Pfirfu’u/iir.H of til*: Mnint : — When the 

5^*1} ! defend a tit . 1 appears, the complaint of the 
3 T^r iplaimiff, must again be taken down in 
’writing i ti the pr-ciimi'i: of the etsttI, ! defendant,) 
specifying the year, nrmnrh, and date of the 
occurrence and also the name,. caste and other 
particulars o-F hot]] tho parties and the 
nature of Ihn claim in detail. If must be fully 
recorded in clear, contfee, and miarrtbigucjuF 
language'. What Was stated first to set the 

* id i to- fiac- 112. 

* $ukra Wiltl. Cbr If Si*h. $«. V. US. 

-* ¥ 4 g Fbrt II Ch. II. V. It), aho 3m. Oh. puss Tit. 

* & 01 , Oh, p- 76 . 

■ JlrihaH-ulti 




:- 3 l ISCIEPT SC 13 T 1 M) Jl'niCAT^EE. fCHir. !I 1 t 

taw it> motion was 31 brief statement nf tS'it case. 
What wae, recorded at a later stage was the 
open in p of the C9*0 with alt its material allega- 
tions in. full L . If the Arthi (plain tiff} gives a 
different version from wlmt he stated before the 
iseue of summons, hie action is liable to be dis- 
mitaed*. There are 5 ways in which such a con- 
tradictory statement nf chi ism may lead to its 
rejection. Allegation of a ■djlTeren t set of faeti 
altogether, allegation of « different act :lI 
together and improper behaviour before the 
afJiiemhSy which casts doubts upon the fxtttrt fidpm 
of the claim result in dismissal of the plain tiff's 
claim while non -response to or evasion of tho 
summons entails lose of action for the defend 
ant*. 

Besides these particulars which ape com- 
mon co all actions, me which are peculiar to 
each notion must also he specified- They are 
necessary for the en forooment of the doc roc and 
for the restitution of property. Noo-apetlfiftitdon 
of such essential pdrticuUre entails rejection of 
tfcu> plaints The specification of the year and 
month becomes important in actions about 
debts. The fallowing particulars are rsquiied 

■ "il;', |Hi|M 1 1 l 

1 Y-WJ, Part IT. Cbi 1, t„ 0, 

T Mila. p, L J.L. 

* 5m. Cfa • p, $4, 




CHIP. Jl[-J r&fiTjtU'TlQS OF ittiaxi. 3ft 

to be giefin in respect of th© i immoveable 
properly in dispute ;— 

{Ijl The country, ^ths particular place whuro 
it is situate, $) its' boundaries,, ;4 j the caste of 
either party, i5) their nameg, {ft) the pereoti ip 
possession of neighbouring prO[>erly r its 
extent, (6) its colloquial or local name, '• tb© 
Mintt of the ancestors of both tile parties, and 
tlO) the name of the king by whom it wat 
granted 1 . 

The abovementiotiod ar^ the chief uhamuter- 
tatics of a good 'Ttf Paksha (plaint). There urts 
some wMob vitiate a p.ikdha TO (plaint} and 

make it unaeceptabte. These may he compared 
Lo plaints which dtsdose no tana© of action and 
are liable to summary rejection. They are: — 
a> When it contains a prayer for return of a 
mon-PK talent thing mv h as the horn of a, hare. 
Rut when it is combined. with a prayer for 
other existent thing's, it is not bud. f$j When 
complaint is made of * thing about ’which no 
reasonable being would com plain, for instance* 
if a man should take it into his bead 
to comp lain that hta neighbour transacts 

bushiest in bia own house with the aid of the 
light in the complainant's house. (Jj When it is 
nut capable of any intelligible meaning, f4} 
When it has no object to gain, e<p. t when the 

* 3m. Ct. piga S3- 




ifi itfeiEJiT hj^uc iroiCifrai, [CJUF, m. 

complaint i & that the neighbour is chan ling the 
Vedfia well, Thi? condition ih alt*! taken to 
[clean that any farm of' complaint, not falling 
within the well rccoarised informs of actions 
cannot he entertained. 1 (5J When it alleges an 
impossible thing* for in^tencs, that a man smiled 
with his eyebrows knit ;Gi When it contains 
inconsistent facts, for instance, that a men was 
cursed by a dumb man..* (?) Where there is no 
prayer for the restitution of any property Of tile 
prevention of any wrong 11 - In addition to these* 
the el ai m for a debt barred by 1 im i Lh lion (5^rficr®rf5t 
of time cannot recording to Nara da, be sustained. 

f OnVui.s .'w ft/,- j/iu/t.) : .lointLor ot 

multifoticejs claim* ill tbs 'RT Pakeha rplainti 
it bod- 1 fiuch Ln ia jp i nder is? called 
(Anckapada LSanlceernul. This rule doca not. 
prohibit the inolpeiop of claims of t|ie 
kind in one actio, a. An action for theft of 
tfold, clothe, and rupees together, is permis 
nible. Nor is on action for money Iont and 
interest thereon together with a claim for 
grold entrusted to another, bad. But inch 
claim* funnel be coin billed with aotioifc for the 
recovery of land unlawfully taken by another 

1 ftrifciAnpflthh 

* Mila. p3I»t III. 

* KaihyfljanB. 

* riaLjj l}iLL_a, 




riUF. in,] 



]>sTinrinjn ijk xi tiOJfy. 



37 



As the acts complained of are different in nature, 
they Cannot be tried ^moltanmualy tm I. they 
can be- tried [separately chip after another. It is 
laid down h.y Katliyayana that a ki ji lz; dMlTOUS 
of finding Out the troth should Accept a plaint 
even though it may contain prayers of many 
kinds which are distinct, Therefore; the objec- 
tion nn the ground of ( AnVkupucIa 

Sankieemal applies only to the various claims 
being investigated in one and the same 
action, 1 The rule of viarado which prohibit* 
one from hri rising an action against several 
persons applies only in the ease of several 
distinct .claims; and not to cases of a single 
claim against wvwtiI persons, notwithstand- 
ing these rides above via red. a plaint may be 
allowed tn bn amended after being recorded 
by the court SUS to bring it into conformity 
with the original allegations, but itw;is directed 
to be done Isefore the written statement was 
filed though under special circumstance* Ait 
amendment was allowed even iaCor, s 

/Vaowe it.’fintxiniutf. &m or be tuad i— A drunken 
men, on* who has no coft&'iousuoss owing to 
d isojvsoor posse ssionofevil spirit,onci whole afflict- 
ed by disease, one who is in mental distress, a 
■’h.LId not capahle of understanding, one whoia 

4 

1 * Mifci, (Ugi' I iH r 

1 gm-Cb- F^fie. 9t., 




3k JrJTCJEM El L!’ LI L' JFLH14I1MS, [lUll', 1 1 L. 

afraid of his anomies, OUO who jfcan enemy (rf the 
town or country, anti One who baa been exiled 
by the king, art incompetent to eue, Also 
certain at tinny between pesrscmn standing in 
rertain peculiar rtdatLoniih ip are prohibited 
Instances of sorb relationship are ( 1} master 
and pupil, (2) parent and child, [3) husband and 
wife, (4j master and servant. Even as between 
three, some actions are pt-r muted. For instance, 
accord i n g to (jtauthamp, a master can punish a 
pupil short of causing his dtaatb, lo the case 
of the weak, heean beat with a rope, h bamboo 
ot u twie mid in ease of others ho can heat 
anywhere on the person. Atcon'dlncr to Mann, 
he cannot inlliet injury on aiiy of the tiLal 
organs of the tiotily. If the master trespasses 
thc^o limits, he is Liable to punishment on (Lie 
complaint of the pupil. So alec in the rasa' of 
father arid sen, if the father alienates ancestral 
property the son can *ue the father, A husband 
ts authorised to take and use the property of 
his wife in timeSi of famine*-, etc., bat if he dwfe 
so out of preecl On Other occ-uaions, action will 
Lie Against him by tW wffed Similarly, forms 
of action between a slave who receives bare 
maintenance and his mazier arc laid down. 
Accord ins to Narada, even a slave by birth 
lTfcomes freed from slavery and he is entitled to 



1 Aiitfl, pr^-si 131 




CJBif. ITElJ I ih-'JI'IL'TJIJ>; tiF JK.1£0>H„ 

thfi share of a son if he saves the LlN of hiB 
tnasler. On the infringement of Finch rights, 
the nausea r esn be sued. Thisrflfore, tl: & object 
of the mJe seems eu l* thni the assembly or the 
kiiStf should d tsob urge such actions by f^ood 
odvitft but in last entertain them iri cases of 
ortreme necessity or pressure justifying inter- 
ference under the circumstancce »et forth 
abovp r l Family women cannot sue as they are 
dependent on their husbands, but women ^uard& 
and th L malR vintnera who earn their own Living 
can sup. bo uls£i SHrvunts cannot without 
the permission nf their mas brut/ A wording to 
ilarecthbu one eo-owner alone cannot sue iei 
respect of Land or money which belongs to 
several persons in common.^ 

Thu substance of the statement of wi 
Arthee should be i-tcorded by surf^r^ l J ivodvi - 
voltii, Thfeijcfaw Ftir^a Paksba should ho sc ru ti- 
nned before ibt--£trc Utlmra. (written statement ) 
is o« I h'd for, l f L Lie i twain burs of the SUrt-SIP bly ca El 
frr die ULhara before scrutinising tho 
[Faksbul [hey icusl bo punished by tl is bins and 
the trial should be commenced again by taking a 
ptYjpet plaint*, 

1 MLt». p. 13S. 

1 Miu,. p. isa. 

f* Sui L’i. ’,|SCU 

* Jliu*. p, Hi. 




to A&Ulpft-I ULtfM JllilLf AT-rKH, Ull IT, ILE, 

3^5? EJiftam [written statement and its parti- 
etdcrr $). After the siuhetance of the recorded 
plaint lias, been reed over to the isrtff i adversary), 
his reply to it IStR (Utharej enuat he taker down 
in the |?re«enee of the {Arthee'i, 

The adversary may he allowed sometime if 
required hi the interests of justice for preparing 
his defence, 4 It may he granted either at the 
request of the party or the dlscreftion of tllO 
a-isembly in respect of trnnaaetions which took 
idaeo long ago. It may be eK tended to a day, 
3 days, 5 days, 7 days, and even to ^ month or 
3 fort 1 1 iff llts in special cnaes of old J -hte,* 
GfiUltliama allows, ever ii year wb«n witnesses 
reside In foreign countries nr when the adver- 
sary it ill, According to Ktrthysyana, tlie 
time allowed most depend upon the olrcum- 
stauco of each case-, Tf he is not ready with his 
dffenue within that time, lie may he punished 
with ll fine ranging from ft to 12 jwnrtJBS accord - 
L]ig to Arthaaastrs 4 - Hareetlia suggests corpora] 
punishment and fine Ef pHrsuaslon is of no 
avail . 11 The granting of time Is prohibited In 
some serious cases such as oflfenoea against life 

‘ rug. Pjirtu. ch. i. t.i 

1 ErifcuHpHlii - Sin. Ch„ p. 92 ; Ninsda, Chi, L v„ a. 

* Napm)* : Sm. Cb p*ge 9ii 

4 Wf. Sim-l tiiSEij'ti AtUib. StottlT*. Boat Iff, Gb I. 

* Ruj. Cb. I :<i tr I Oil. 




CHAR III.] laStHOfKsa W ICTIEW*. il 

by LIHP- of p*iis*m or Instrument* tln>ft n Insult, 
and assault, offences against COWe, £H5C09&tiori& 
•■if heinnn? stfiis,. mfe-ippropriation of main- 
tenance aniOtint, charges alwint the character 
Of Of claims about the ownership of 

female skivee, 1 Nurada lncludcBciaimHabofiTlaild 
and sold io this category. Failure to put in the 
written statement entitles the other party to a 
decree. 1 ' The Uth&ra 3^?R rmtsl (1} irayerse the 
plaint allegations in regular- order, (il must he 
consistent with logic and reason (ssif 1 *!), i,3-> 
mast- bo a pool answer to the claim, and [4) 
must tie fondled in sweb clear language which 
does ild£ require any interpretation . 3 Therefore 
any Uthara. which does not conform to these 
CCrtlditiona cannot he aioeep fed , 

The Following kEnda of^^TC lUtharaj am 
defective and tliorsfere bad in law : 

(1) Bf*n^3Fq^ ijg„ when a man is eued 
for the recovery of 1(H) gold pi«C«£, if the reply 
be that lie is in possession of 10 pwtitHA, which 
is o mite unconnected with the aubiaut of tbe 
claim, it is called an Irrelevant defence. 

('J: Athyalpa, t, e., in the same claim 

if tkn reply he that he is in possession of only 5 
gold pieces, it is called partial defence. 

il 1 tt ttby&^An* i 3no. Cli, 3*t> 

* Jvil. Cl!l* |'H£>’ [Os. 

1 Pf3,j*pathi ; Snt r Ch. pKja 9S. M to. psq-i El£ 




42 AfilJgJSS? HIJfiA' JCjn-KATCkl. LCHit 1 , JLEr 

f3| AthE bhoori, if the reply be 

th:U ho ia in, possesion of £00 gold pieces it is 
an exag-ffot-iH ed defence, 

f4) Whim the claim relate to 

Ffold jancJ cloths, the reply that be has got go Id 
only and nothing else is another kind of partial 
daffiP00r 

5j sqtaq? When the claim relate* to one 
matter, reply in respect of some other mutter, 
i. e., when he in nmed for LOO gold pieces, reply 
that he iiMH Ijhwii beaten hy the other is another 
form of irrelevant defence. 

(6) wurJti When the chum is in respect of 
land fully described by boundaries, etc., vague 
reply that he has taken a land is called evasive 
defence. 

<7 ? j5f5jjrr»T or an ambiguous reply is one 
where in a claim for JOT gold piece? the stiver, 
wy says LL L>u J alone owe t ” Implying thereby 
that the m^mpreaiding judged other mem- 

her* of lh« assembly anti even his adversary 
might similarly owe, 

ft) or ffofi: ov inconsistpni reply, i £.< 

when the reply is that he took 100 gold pieces 
but he hah not got them. 

I 1 ? Eirfc^rtTHf when the reply is in foreign or 
on intelligible language, 

( lf» wrC or defence having no eubetanca, i.e. 




CltiF. Ill.j [JiSTIICTJnK OF i-CTJOdflfl, 

fii tbs rasp af a claim for money lent Oh 
interest where the receipt of fntwrwt alone is 
admitted and the claim is made Tor the- princi- 
pal sum, r^ply that the interest has been paid 

twt that 1|i<’ ivii rK' i [vi L sum ha? not been re- 
ceived p: called Asar'.i having no sn tat hoop 1 
A valid LI tli aril is of four kLJld-a : (1) OTT^- 

fflrr or Sampiaihipat-hi or admission, , fW 
i.tliy4i. Or (denial J, or ttW hta- 

thvu'.-a.Hkatidhana or karam or (confession 
and avoidance^ i4 Poorva Ny ay a or (res 

itefir-jtn .- 'Again ftpifltiT denial of oLaiml is of 
4 kinds; 'lj Positive denial of the da Lin. &!, 
denial of all knowledge of the claim, ' !! deniai 
ofpresen.ee at the particular piece, or at the 
^articular time, and -1 denial of i irth ever 
at the time alleged.' ira^*** Pratoyavus- 
khardhana denotes, in a case of claim to: 
the recovery of goods, cither receipt at the 
goods and return thereof, or an absolute gift 
The essence of this Uthara as explained by 
Narada is that it admits receipt of the g-i-Kidi-i, 
money, or other subject of d aim hut arwipag 
some ^rood reasons for its retemtian- T^sEf-q, 
p'.virvpAnyaya ires jtidi/Ma'' ari^ where a man 

t Mit*lr Pngl' 113. 

1 KitHjfaTirip. ■„ Ititli l t2, 

J Slif*. page 112 . 




■t± 1-ffieEST KL3W JOniCi-TUHF- {GfflP [li. 

■^Lifirf pleads that h e had been msed once hefnru 
for the name subject-matter by the same pensin 
and that it hud ended ndverHsly to the oppln- 
nent it may be proved either by the written 
rudiment it) thr. previous suit or by the evidence 
of wjcn«aK*or of thfijpd gw who diaeided before- 1 

MI&JOINOER OF PLL*S. 

Tin! combination of these differenL kinds 
of Uthau in one and the same action lb 
prohibited.* The prohibition is bawd on tliu 
i?TOund that it might otherwise lead to con- 
fusion tts to the Kriya or burden of proof. 

In a sinEle action the Burden ckF proof 
cannot be on both the partis. M there 
i$ only nnt; ohjeut to lie gained by 

iiLLhiT,. there cannot therefore be- ftrcf burden of 
proof on l>oth. For instance when the Uthara 
;;ombines and (denial and eanfeseion 
Lind avoidance) the burden of proof would 
neonwsri Ly fall upon both parties, for it is L-ni ri! 
down that in cases of Fla«rr. denial* the 
burden of proof is on th>‘ ?rdl plaintiff, while in 
tbs cases of WITH roofer ion and avoidance) the 
burden of proof is on the defendant nfrwr^l- 
rheroforp the con.1 binaf ion of the two kinds of 
burden of prool" in one' action would be in- 

1 ylil n. pure ] ! 4i 

1 ftmhyH'jm i. 




CRJ.F, HI.] IJt&TtfOTlOX OB *1.1 JOSH. "Ul 

consistent.' When the claim is for recovery o; 
f»old and Ids, lCH), the plea that gold was nev en- 
liven and that fta. 100 had bean repaid is DOT 
tenable. Similarly the pleas of 3rrc$l and 
(Karan a and Poor v a NyaytO cannot be joined 
together as each of them throws the \ 
burden of proof on till 1 defendant. At in a 
single claim either plea it tuffieiont to non - 
£=-ni t the plaintiff,, tho other becomes superfluous. 

Tho same considerations prevail when. 3 or A 
pleas are combined, The objection as to sttcli 
misjoinder applies however only when At] these 
pl&iAfc are to ho hoard together but there can he 
no ohjection to their being beard oan after 
bmothur h li^ tho apfl Plaintiff! can succeed only 
if All these me negatived one by ono. The 
order in Which they can be hourd may depend 
npon the 'vill of either party or of (he 
mAmbctfr of the assembly subject to the follow - 
1 rag- exception, vis^ that the greater of tho two 
pleas ( Prabhciothuitha Viahnya, 

orlOnc which leads to the performance of soim- 
action in the shape of positive proof or 
[Kriya iVSshaya) must first be heard, 1 When 
Karana is combined with another, 
inasmuch ah there hi no action to be performed 
in j^the other pleas, iniist first be heard. 1 ' 

* 1 £!>.i . Cii. LUll . 

* HartStli! Mil'S, jjaguit I I 2 r LI 4. 

* Km. L’n. -age 104. 




4(3 



AVCJE^T Hianu JSIUVA'TUItE'. [V1CA* 1 , llb- 

Extimpfo 1 : — in an action for gold, nipcra, and 
cloths* when the plfia in actmisginn about gold, 
denial about and return of tin"- clot ha, the 

plea of denial must first he in vesrigated as it has 
mjaru {Prabhoctharthsu Then the plea about 
doth* can come in for adjudication. Similarly', 
tire same rule must ho applied when the ether 
pleas a no combined with each other. 

Example 'l :— (n the s&mo actiyp, suppose the 
plea is lL l received gold and rupees, L shall 1 
return them ; cloths, 1 dirt not receive ; nr having 
received. I return nd them. In respect of cloths, 
the mutter is abo concluded by previous 
decision.” In this though both the pleas of 
admission are of the greatest value as termina- 
ting the d-.spute. still Inasmuch as no proof has. 
to he adduced about them, the other pteys itiusi 
fimt be beard . 

Though however in gome cases the pleas should 
appear to l>e in the nature of a denial and also 
of confession. and avoidance, even then the 
burden of proof is on the-jppff (Defendants. For 
iiutuiUMt when a man claims a cow as his as 
having been lost since some time, and now found 
in the ptssjession of hie adversary, and the 
adversary says that the claim is not truu and 
that the cow has been ip his possession even 
prior to the time alleged, and that it is hie 
having been born in his bouse, such a plea 




CSJ.F |]|.j, 



]*™tuii(vk os' 



47 



projMsr It ih neither purely a plea of denial 
nor u pltsi of confemicm itnd avoidance-. R 
pit rtsi koa of tils tiufmr of both. 'I hf ljurdi.’]i of 
proof is on the defendant in accordance with 
the rule that in ertSrs of JvaranaJ plra, 
the burden of proof is on the defendant. It might 
be Argued why if thus pica in in the nature of a 
denial the burden of proof i* not til town on 
£h* plaintiff. The answer b that it applies to 
CAST’S of absolute denial and not to (pintified 
dentaU of this kind ns explained by Hareethi. 

Where the pica of denial and res judicata 
are combined, iMji also the burden of proofs 
on the defendant in accordance with the rule 
that in cases of plea uf rev jitirmfn t h r burden 
of props’ is on the defendant. Tim mere fact of 
the plea of denial being combined with it does 
.not taken way from it the character of the 
plea of rex juijvatg. as every plea of resjudkmtta 
implies incidentally the denial of plaintiff's! 
claim al^o. Tim rule therefore seems to be ibe 
when the pica of denial is casuaily combined 
with other pleas which substantially admit the 
claim, then the burden of proof in all inch casea 
is on the defendant When the plea of $rctT 
sod a™ combined Iwhen a naan pleads 
be received but returned it and uLso .says it. b< 
concluded by former decision}^ the burden of 
proof m of course on t lie defendant In respect of 




4$ isccbui jiiku’; nruirMiPiiP.. [crip, hi, 

both the pleas and lie can chooise tJs<- proof of 
cither plea in any order he likes , 1 

After the- written statement h&S l>een filed, 
the party on whom the bunion of proof lies 
shah at once note down the evidence which he 
intends to adduce . 1 Though time may some 
times he granted for filing written statement 
noting of thr evidence should bo done without 
any delay after the written statement ha* boon 
filed, tc prevent fi.loo evidence being got up. s 
Therefore it fol lows that in casco of pleas of 
adoiipcion there is no necessity for adducing 
evidence and the trial cornea to an end at once.* 
in other eases, the trial haH to commence and if 
either party proves his cl aim hy evidence, oral 
or documentary, to the sjfltiflfactiort of the 
aspcmbly, he succeeds.* 

Notes to Chapter til. 

The minuteness with which these rules of 
pleading had been framed even in those early 
days cannot fail to strike a jurist with their 
astounding similarity to cur modem forms of 
procedure. The rule that t lie nature of the 
plaint or complaint should ho closely examined 

1 Mil*. p*ge lit 

* Y^. Pan II. Cb. L T. 7. 

1 Ah la, paTH II&. 

1 H^nnhLbA Mita. pa^c H j. 

* Yog, Pfcrt II. Cb. 1. i. A 




Cm Hr in,] isEh-JiTUTirnr nr ie-jiosB. 4? 

hcfore the adversary meompBlkl to appear 
in court prevented needless harassing out of 
‘-pits. The rejection of the plaint 2tt encii case£ 
res eni hies [he procedure laid down under section 
iifld of the Code of Criminal Procedure by which 
frivolous complaints aro thrown out, and also 
tile procedure adopted in civil taw whereby 
the plaints showing PO cause of aotion are sum- 
marily rejected:. Tho rules laid down for the 
appearance of the party applied to the attend- 
ance of witnesses as well, Id Inspect nf the 
attendance of witnesses, a novel font Lire of the 
indent ftyAr'in was the punishment inflicted 
hur the abuse of the legal process. It is a very 
common pract ice nOw-a-days in Indiafi Courts 
for Use complainant in a criminal SOSO TO 
include as accused all persona whaare likely 
to give evidence For the defence, frt addition 
tothi*, vary nffccn the female relatives of either 
party an? summoned ur witnesses though the 
fading of the community is very strong against 
the appearance of respectable women in onurba 
This is done eithur out of spi te or out of a 
desire to coerce the opposi to party to OOHie 
TO terms in hifi desire to avoid social 
tn.i nifli at ion. I'ndar such cm umatinccs the 
person suinmoned Es left absolutely lialplc&u 
however irrelevant her evidence might tisrn 
out ta bu, or however vexatious stieh enfurced 
attendance might lie felt to be. No doubt ihe 




r lO AJlCItHI M | ^ III; JCII.LaTI UK. JCIUB* ill. 

hkhJc’tii Iflw nf India having rpgard I* Ihf 
oxped ictujy of enabling suitors to pmca™ tin* 
attendance of wiinf-m without any difficulty 
ha* allowed ati amount of latitude in civil casrh 
which is sometimes put to improper use. Very 
often the rndiaii Courts invoke the aid nf 
inherent juried iction to prevent such abuse of 
proces 1 -: but utiun the mischief is done without 
the knowledge of the courts, the courts arc not 
armed with the necessary powers of punish- 
me nt for using the Courts intended to afford 
relief as instruments of Oppress! rm. 

2. The recording of the particular* nf the 
plaint and the written statement in the nresonci* 
of the opposite party must have had a very 
salutary effect in pro von tine reckless allega- 
tions, Tc has, a striking resemblance to the 
earn mi nation of the parties in Court before the 
issues are settled which though prescribed by 
the Civil Procedure Code of India* is more 
often neglected by the Indian tribunals than 
observed. The ancient judicature of India made 
such examination compulsory. 

3. The rules about the misjoinder of pleas hi 
the written statement call For somw n-n-ticu. 
They seem to have been framed with a view to 
put a check to all sorts of False defences being 
set up in respect of the; same claim. The 
modern rule of pleading which while prohibit- 
ing the plaintiff from suing on inconsistent 




CU4 !'- irr. ] SMTirCTtO:! OP ICTHMfl. :»E 

causes of action relaies it in favour of the 
defendant seem* to orr on the Hide of undue 
leniency to the defend ant, It apparently acts 
on thL> principle that tn g possible false cEaim all 
[XPsihlo false drfimPfrt TTinRt he left open, Tilt 1 
ancient rulea f«?rniitterE t!iR combination «f 
d Efferent p3oan in- renpHct of various claims but 
inisisted oi] their being heard one aftor another. 
They bear some resemblance to the modern rule 
which aLUim multi Farioiig claims to he triad 
separately, 

i, Another nnte worthy fe&tnre of dae 
judicature in olden days in India wjk the 
at^eiK-H of the professional class of lawyers. 
The Huiritis make iili reference to them al nit. 
It would be tin iolctn-.-itin^ Kuhjoet for research 
to find out when they first ciisih into existence 
in I rid ia. Hukranl'lii makes Home reference to 
them. U docs not mention th^m as a professi an- 
al clans who made it a special avocation of 
their life. They were however required to he 
well conversant with legal procedure and to 
be men of good character, Thay were subject to 
the disciplinary jurisdiction of the nourta also,. 
Any nroxy acting contrary to instructions or 
behaving improperly out of grend was Hable to 
punishment. The party iia-d no unrep tr icted 
right + ef re-presentation inwall eases, It was 
withheld in serious crlunea and particularly in 
offences aRairat the State, Our former Mu ham- 




62 



larpinr JULiicivcfct, [Cm*. in. 



modun rulers hppih to hjive illdontfiit more or. 
Ill* tietp of these legal proieies as the very ternt 
+l Vakil" implies Pven the SimHitTii Chandrika 
which is a lega^ digest eortifWBOd in the lJith 
tx'Httlry Si bitcnl tin thiu point. The nfieej^izty 
for Hits body of professional men mint have 
arisen after alien rule begum for the .ludgei- 
wild adrni n i&tOinGd the law woif foreigners, 
ignorant of the languages oF the country and 
f*ome niiddls men WOrt Jneiplired to assist the*lW 
in the administration of justice. 




CHAPTER IV. 

SPECIAL RULES OF PLEADING \ND 
COUNTER CLAIMS. 

Coutitflr rffliiits and counter actions. 

Wliat hiUf been stated above are the t ha*'- 
actsristics of actions C V r jrav&bain&.) in gener- 
al. There arc certain ratwi which reguLSTfl 
eoniator-acttons and counter-claims. 

Ptio flcnernf rule is that when one action La-** 
heon oamm CitCsd the srspff (Defendant) without 
Blearing hiniBotf of It, cannot s?tart another action 
C-a L] cd J3FrrriT^tTT (countor-ac t iunl a tja List his ad. va r - 
^ary ar^L Though the plea of qcqr«i ; iE or 
(confession ami avoidanco) may appear to be :n 
die nature of a counter-claim, inasmuch as it 
serves to dear oneself of the charge brought, it 
ta not a, separate CQUiiter-n-otbin. Th<? prohibi- 
tion is In respect of a different counter-nut kjji 
unconnected with thjt previous One. An obvi- 
ous exception to the role of mfafa (counter- 
action) arises in cases nf wrongs affecting 
pfltsofl, such as fiuarrelp with or without the use 
offeree, insults, and serious crimes endangering 
life by tiie use of poison, weapon etc-- Under 

«■ Ya*. Em i|, Cb. II. 9 it, 

* Yijir Fart IS, Cb. 11 . t. 10. 




idfllPtT Ltsijn nmuivu. et- 

these ei pcunirttincEK, a voun t&r-compl&i at can be 
laid. Though thin eounter-aornplaint is not 
re.tlly an answer to the original charge but is 
an independent and separate charge newly 
Parted, still it is permitted, s&it would go cither 
in mitigation or enhancement of the punish- 
ment for the original charge . 1 Tn determining 
*uch disputes, it is laid down that the aggressor 
is the more guilty of the two, When both start 
the quarrel or beat each other simultaneously 
they shall receive equal punishment.- 
{cciintor-aetioni is permitted in such cases. m- 
serving some useful purpose whereas in gthnra 
it does not. In other easri it lead? only to 
needless embarrassment at the trial arid put? 
the adversary to unneecatwy annoy anm. 
Consequently it is alto laid down that when 
one action, baa been commenced and the trial 
of it has not ended, no other action shall be 
started at the same time against the ^rune 
person. 

Vtxrmticp. in pleadings ; — A h a lesser form 
of counter- a ct ion the variation of t be- pleadings 
is also prohibited, Etk not open to an 'plain- 
tiff) to allege «l the time of recording the J-imr 
{Bbashal a di fTerent set of cirranwtfliices f^jn, 
what has been aliened at the lime of trrcsyr 

I MitJU pigfl 1 17. 

II Nanda. C&- XV. t. 5 and 10, 




■r.HiP. lv.) apicur. hl r.iu up j l^u-ieg it cocrKiit ir.jun-. W 



[ A vedarm 1 1 Et Kuk been already laid down that 
the aubstLiicG of the ^TITT should corretpoud 
VW ith what tis contained :n the Aved&D^- 

r rhvs there should bo not only the identity 
of the gobjjeot-mftttcr of tbs claim but also the 
identity of the allegations in rsRpect. of the 
tjuno subject- matter.' 

Example;- A matt having alleged ihat he 
bud lent life. 1U0 with interest and that It had 
not lioon repaid at Lhe time of an^^r ^ivedana ) 
cannot at the lim« of bluisba say that h« 
had lent ItJO cloths with Interest. Nor can he 
^sy at the- lime nf Ijbasha LbaL the adversary 
hed robbed him of fts. LOO while he bad alleged 
before that he had lent Rs, 100 with interest and 
that the adversary hadt rsfiised to rut urn it\ 
Non-observance of such directions does not lend 
IO the dismissal Of the pleas mined hut must Em met 
with punishment. For it is the duty of the king 
to find out the truth Of a Vyuvaharn avoiding 
all attempts al deception, Sucli variance in 
plead i rigs however may entail dismissal of the 
claim in m bitters of dispute arising out of passion 
or temper (such n-c assaults,. ate,] but not in 
masters rain Li ng to rights to property or women 
in which case the pensOn guilty of It may only 

1 Mitu. ik 1 1 6 (mi STanidu Cb. II. t, 2-1 ar.rl 5m. db, 

’ p. Efl!> aiid IQS. 

* Mini, pace lid. 




Mi AJKjbBFI lltNim JBiU£JL7V|l*H [CilJP. m ■ 

t>e pLir]!H]i(!J J . Tint if jaieh variation occurs ill tb£ 
litter COM aftar iiling of the Written state- 
ment the elm i in itsmlf [hi I [mbits to he dismissed. 

Example : — If an (COrtl plai riant) having 
stated at the time of Avedhann tb&t he 

was kicked mi hie bead by si^rff [Defendant} 
witii him foul jays at tilt; time of Bhaeha be 
was either kiuked with] foot or beaten by liand, 
not only Eh hu liable to punishment but alw> 
bin- jf^t-wm is liable tu Ejc dismlssed- 

IVotes to Chapter |V 

The rules ahout ooutiW-ehiiKts und counter- 
actinnia were framed wLtli a view to prevent tins 
neortloKS harming of m |Kifty by YeJt&liaus 
uOutiter-edaes mmil frivolous uountvr-tl^im*. This 
was a distinct step in advance of modern legb- 
litEoii. A mother mode by which the tendency to 
pursue frivolous and vexatious litigation wa* 
eheoked was by pun iab meat of the unsuccessful 
party ae will lie shown in Chapter Xj The 
modem Indian Legislature has tEsonght fit to 
r^-atrict it to criminal actions. Elteflfrion oftlii^ 
rule to manifestly false and vexatious civil 
claims would be a vholworae innovation ton - 
distent with ancient bmritbis, in tho administra- 
tion of civil justice as tending to diminish nccd- 
lees litigation, The modern rule of paniehnMiii t 



1 Jditl. pae'- t ] 7 ; WarfldH, Ch. IT r- 5J5- 




£H*t, rv.j Sl'KCtJOr JirLKA (It llKAlIJSti A CO*KfB]£ OLilllS 57 



by the awarding of costs to t4i« successful iiarty 
is found by experience :n many eases to !>o in- 
adewiujitfi reparation for the annoyance under- 
gone and the expense actually incurred in the 
course of a protracted litigation, The ancient 
Hindu legislators while aaxiaua to cheek litifra- 
tion recognised equally well that the strict 
application of these rules of pleading- should not 
enl;j il fall a re of sufc?ta n tial iust ice* a nd 3a id down 
as a genpral rule that it was the duty of the 
king to find out the truth lit spite of the techni- 
calities of the Jaw and procedure and the 
dishonest attempts of suitors to take shelter 
under them. The rule that the question of 
variance between pleading and prool ls one of 
subehiucu and not of form is as. old the Sturt - 
th i s, The amend meat of ( he plea dines was per - 
mi tied in important eases relating to property or 
women with the nocc&iury aafcg Lta and of punish- 
ment for such alteration. The punishment was 
apparently in the nature ef a Hne which, eea-ro- 
aprcnd-s to the prefiOnt award of costs. 




CHAPTER V. 

FKlNC'im-.H OF PROOF FWf PR_,1 MAN A. 

After the filing of the Written statement the 
judicial assembly determined on whom the 
burden of proof lay, [n accordance with that 
decision the party called upon to prove his o&ua^ 
adduced his proof Pramana CJJm). No proof w&$ 
admitted! which. Wiisa not tendered openly in th« 
presence of both parties, 1 No necessity was 
apparently felt for the procedure now adopted 
of framing issues? io the case as the oonrts were 
required to inn fine their attention to the trial 
of only one particular claim at a time. Proof 
tffllT is of two kinds, rrz.. (] , nrif^i Hu illufl, 
[ii SftrDiv ine. Human is furtiiiliud by 
(l|l ?th; 1 1 me n fni^ d l ' 2 1 V, 7 1 Litcfitm-ft a j fcj, (ft) Enjoy - 
meant Divine proof is usually of G kinds 

besidoi some others. ill Ordeal by Balance 
^ Ghutu, fist by Fire arfcl Agnl* (ft) by water 
Udafca, c 43 hy poison vlahu, C5) by 
drjn king water tri kosn. 

There arc certain rides which regulate 
the mode of proof applitpihle in certain 
cases. Divine proof is. tn he resorted to only 

1 ftiibm Perth) Oh. FT. Suli-Ri'c. v. ]PSi 

" Tag. Part II Oh II *. 22 




GHir. V,] I'HtiCIPLIjS <ilf PlHJO*- 1 $ 

in the filjfeSrtt'tf of human proof- Where of 
thp two Hithfjants one fi<3 (JSucwa human proof 
and the other divine, the human proof must 
l>0 seoeplert in preference to the other. 1 
Where &Ih a portion of the claim only 
is proved by available human proof, the rest 
cannot ho proved by divine proof. In such a 
ease by nWujOli of the rule that proof of 0 pari. 
amount-3 to proof of the whole, the whole claim 
must be held proved. 

Riu/ii/rfe .- — Where a man ha* witnetssoa only 
to prove pLiy cnent of money in lire case of a loan, 
and offers to prove the amount lent as well as 
the ratu of interest by divine proof, the div ini- 
proof is not permissible". The rule that ffRtfi 
fHnhrtStt' --tfc-ncBE committed secretly Can be 
proved by divine proof, applies only in the 
absence of human proof. The rule of Narad n 
admitting divine proof In cases of ™- 
mittfld in uninhabited forest, or at night, or 
in the interior of a house or of Oflsea ofbtenctl of 
ttu&t must be understood iim ila rly , The general 
rule which admits divine proof only in the 
absence of human proof is subject to the follow- 
ing exceptions. According to Kntyayana,. 
In actions for ,;-n r^-fr Lind 'Trs'q violence and 
defamation, divine prtXif ds the only kind of proof 

* KntbyPTsnn mid M'ia. p. 1*H- 

* iiatbjsyiii-a an-d \lila p. 12& 




iJlcresT ffiHDU jjuicatdbeIi [CUf- <r- 

jicpBsibfe- fur dptsTmitkiutr the criminal act.- Sub- 
let to these ruleMn pleas of denial, wild cnnfsn- 
.sinn and avoidance, either form of proof may tx L 
add: Hoad. Ri»t the l>Eoa of wx judicata issnerep- 
ti bit! only nf hitman proof and it do«$ not admit 
of divine F^wf 1 . Home Smritbi writer? lili*- 
Rrihaspati, Katyayana, <ind Pitaimha alto- 
gether pmhiZsit, report to divine proof irt rl 
Hlxtuc immoveable property and in chars of 
minor insult. Rut divine proof may generally 
be had In uaiies where the evidflr^ [oral or 
documentary) is highly suspicious and the 
matter in deputy is involved in grant doubt 1 - 

Even among the forme of human proof 
documentary proof or proof of enjoyment a lour 
i£ acceptable in some eases in preference to the 
rest. In respect of transactions carried on by 
any corporate body, guilds, or associations, docu- 
mentary proof alone is valid and not any other 
human proof even to the exclusion of oral evi- 
denced Oral evidence is considered legitimate 
proof in preference to documents and uivinw 
proof in the case of disputes about payment of 
wages between master and servant, and about 
non-payment of purchase- money , and in cases of 

1 Mela . pp. 1 -And Lit. 

* S>n- Ca. p, 150, 

* Sin, if ’h.. [lie-H 1 il l . 

' lirihii-Ti ithi i Kidiuynjiinii, S m . fjlh. p. I fil, 

* 3a, Ca. p. \i£. 




cjui, Tr] ipi;jsc:?ith Ob' ruour (?riau.ja.j til 

diaputflB about gambling, In actions regarding 
tbc right of paEsage through a door or way h or in 
action^ regMrdir.g flow of cynter Or tnjoymwntoi 
water vigh la. proof by enjoyment alone is. pnc- 
forahlo to any other proof 1 . Kataynyana s«iy^ 
that in ail disputes about immuveablF property 
eitlirf documentary evidence or evidence of 
enjoyn'entpluyt a greater part than mere Ota] 
evidence a?; tending to dear up disputes, At 
between the doc-urnen tary ev identic bind the evi- 
dence of enjoyment, the latter hat greater 
weight-. 

Title with ftosw-taion . — Blink ( hi (enjoy - 
inept) corncis Ihrrrfdie foremost as a mode of 
proof ill r^pc-et of rights to immovable property 
generally- As passi'SElon is an incident of 
t 'tvnen?3iL]i it is recognised ua a mode of proof of 
ownership, Haroetha describe* title ae the root 
el nil possession the branch of a tree. Mere 
ptraessifiil, however, is not proof of ownership, 
ft is Le.pl! 1 title Agumri., iaa'h as is acquired 
by gifts, purchase. etc., that really eonfei* 
ownership. 'Such title has greater validity 
than mere possession in determining owner- 
ship^ According to Yagnavalkya title how- 
ever perfect if unaccompanied by even flight 

' r Mill. [Mpp 121, 

* Karadn> Cs. IV, t. 77. 

* JftrMliOln. IV. r.ffSmd 90. 




ij5l jyocsr (ripDO jUJlUCitrijlE jCKAP- V. 

possession LS OF no value*. 1 Pcusessioii in in- 
sisted on by Kfttyayana and Biri hasps ti alf** 
("or completirie the logat title* as affording nemo 
guarantee of the reality of ihc title- deeds. 
Katyayana soys that tvndisturlj-ed possession 
for LD years under a document to the knowledge 
of the former owner places the document beyond 
a) l doubt. Enjoy men t of even one* of the several 
proper lies comprised hi j document raises a 
presumption of enjoyment of the* rest.- Even 
if there be legal title evidenced by & document in 
one man and if he allows enjoyment of 
property by another, the owner runs the risk of 
losing his property. Ms legal title being of no r 
much avail to him in enurne of Iiitie*. There- 
fore some slight rkiassaaion is enjoined in token 
of ownership- But mere possession for however 
long a time doc^ not confer ownership as a 
usurper cannot Ijccntno owner by the fact of 
l* isfitnudim. 1 Therefore possession, in order that 
it may afford proof of ownership must satisfy 
five conditions : il) it mast la' accompli n led 

by titlc„ {2} it must be long, i ilf it must bo with- 
out interruption. i4> it must he* without Obstruc- 
tion, l5;i tt must he tn the knowledge of the 
adversary. 1 Bat in cashes of mere enjoyment 

i ii|, ft mil eb.. il v. Si. 

* Brihippalkl j Sm. Ch. |ii|-i! ] h 1. 

" Narads Cii. IV, t. 87. 

* Mb*, pugs* 12$ s. Sm. 0b P [Ago 1W>- 




f]r* I*. 7. 3 J'ltlSCirLk* OF HUKJF C-? 

from generation to generation if is valid proof 
of ownership hy itself though unaccompanied 
by proof of title* as such long possession raises 
the' presumption of legal title. This exception 
applies only in eases of on joy mart for a period 
lasting hpyond the memory of man or for 3 
generations, which may he taken to exceed 
the period of man's memory, 

Ordinarily one hundred years, is consider- 
ed to he the period of a man's memory , 
being the period of his life. The validity of 
rosscKaion based upon title hits reference to 
enjoy merit for a period less than OiSC hundred 
years. In this case, an it is possibly to deter- 
mine whether possession fa hased upon title or 
not* poss 4 ^i<m accompanied by title ir recog. 
mhed as a mode of proof. In the case of im* 
memorial enjoyment or for over :! gem era tionv 
it is not possible to trace the iiiidenP* Or other- 
wise of title as the origin of rwawasion, and 
therefore mere possession h wcogniaed as a 
mode of proof, 1 If there is no memory of 
enjoyment from generation to generation hy 
right, even though it may be for over 1 OQ years. 
mer 1 pfiKsessinn j? of no avail, as it is laid down 
that a person enjoying without title though for 
hundreds of years is Hable fn punishment as a 
fchief. The conclusion arrived at hy the 



Hsthyuvan^ hiibd, p*m? ISfj; !5m, Ob. pure 143. 




iXCliNl H : a lit! JLUlEAirS*. [CIOlP. f - 

SnlirLtlv writers is that possession baling a 
lawful origin alone ip valid for proving owner- 
ship In course of time it proves ownership 
O&nversoly moro title Without pnasofsiEon cannot 
prove ownership as W6rtt of posspspson miy 
indicate eu bsctiucnt transfer of ownership. 1 Thie- 
ls summed up aa follow* by Yatisavallcya 3 

amwlft dTTm II 

b*itt»tttah a say** :— 

?rnt^ f^r*jrrif3 -rppft 
smrortsf 

Title iL'/fhout piM&ea&itiTi : — Title however 
perfect IS held by Yagnavalkya not to be 
complete without even slight ejosm'ssioii . This 
rule i£ interpreted by Vignoswara 3* insstiilg 
upon the- importance of delivery not only for 
<li vesting one of ownership hut also for the 
purpose of triuBlorrilii? ownership to another. 
The transfer of ownership is effected only by 
acceptance of delivery, Acceptance may he of 
'i kinds: Cl) mentaE. {£} ora!, (3) physswtl. 
MCjot-il acceptance ITRfc? takes place where the 
Srunsfcms wills that the prciperty shall be hts- 
Qrall acceptance ■niV^ is h.Ioiil" hy means of de- 
claration in unmistakable language that tin- 
properly ha* become his own. Physical uccept- 



1 Mila. p»«« IS!?. 




LJUIC i Vj H Kl S CiPLltl UK I' nil I] K 'J'K j. M .1, , | (JS 

inice Frf»(T iis signified by various modes Such as 
actual reresvLng or touch, etc. Rules have been 
laid (town indicating the various modes of phy si- 
cal acceptance. Deer, cow, and kid must be 
accepted by holding the tail - elephant by hold- 
ing : + e trunk ; horse by hiding its manes; atld 
a female stove by touching her head. Accord- 
ins no jrtavatayftna, lining thing? must be 
accepted by uttering some sacred hymns or 
mnpitious words and by touch in the ease oF 
inaniinlUte objects and girls. In the ci-rae of 
move? VI os. at! the 3 kinde of acceptance arc 
prratiMc Butin the case of immoveable pro- 
perty physical acceptance is impossible unless 
it be by enjoy moot of LtS usufruct. Therefore 
I he ml - says that mere title created hy eal+- or 
gift w illtOill even slight enjoyment eo as to 
indicitt acceptance of ownership- ie not < -u- 
pl et-e -ml cannot prevail as against title 
accompanied by such enjoyment. Thin rule 
opera tv? also to determine priority between 
two conflicting titles the dates of which are not 
known, in which case, the one with pusHessjop 
prevail* over the other without possession, If 
the dates are known, the one prior in date 
(eight to prevail even though devoid of posses- 
f<i on, 1 

This :ulu ie also understood by Vigncswara 
Jf.Lri, pafje I lILi. 




tj6 IKai II I -1 DU Jll SICUTf fet. [CEiS, T, 

as- determining the relive merit*? of the 
,1 kinds of human proof in certain cases, When 
the title of the nriginal owner has been proved 
by witnesses, it ought to prevail over mere 
present possession except in the case of inherited 
property. In the ease, however, of inherited 
property, the feet of inheritance from gener- 
ation to gone ration is of greater evidentiary 
Value than prouf furnished by documents or tiy 
third parties. Tn the case of titles with $nd 
without possession, the one with possesion ie uf 
greater validity Ilian the one without roast's, 
sion '. 

PwxriptioH and limit ait on r - From th^a die- 
cuesions we are naturally led to the canes of 
enjoyment adversely to the real owner. In 
respect of such enjoyment the following rule ie 
laid down by Yfi gnutfftl k y& 

^ 'i ww m ft’ 

It a stranger ie allnw&d to on joy the land of 
another to the knowledge of the owner and 
without obstruction for 2-0 yours, it becomes- 
lost to the owner j if it 1* moveable proparty, 
it ia Imt after enjoyment for 10 years. Vigna- 
noswara- strofi^doa hard to establish that this is 

1 MiU. faftfi 12&. 

' Y*g, P&HlI.Cb, 11,. v. 2-J, 




SH±P. Yu] PiUHttHEB l>F Phnor (YHtU*NA.) (i7 

neither a lult df limMion nor a ride of pre- 
script iort. ft does not stand to reason, says 
ViBnaneawam, that the Owrtendii p- in the pro- 
perty itself should be lost after enjoyment for 
the prescribed peirF-od, as mere non -obstruction 
is rot recogn I sod by law or linage AS a mode of 
transfer of ownership, just as a gift or a saIh. 
Mor can mere enjoyment for 20 years confer 
ownership as mere m joy tn e tit is no proof of 
ownership just ass ownership tinea rot rtOCes- 
S&rity condole enjoy 01 on t. AJso mere enjoy- 
ment as no where laid down as a mode of 
acquisition of ownership. For according' to 
G-antama, there art 1 only £ modes of acquiring 
Ownership: ■'!} inheritance, {%\ purchase, [II] par- 
tition. (4] stu&ure, o; finding, p>) gift Goa Brail- 
m*ina r i7j conquest for a Kshatriya and (.-8) acqui- 
sition. of wAgc&by VaisyA and Sudra. N&r*d« 
enumerates only six, ef*,, a) right hy hints or 
the findint of treasure, : i) gift, (Si purchase, (4> 
conquest or valour, 5 nuirriAge, [fifinheritance, 
Eirihaspatlii makes it 7 by adding gains of 
learning and mortgage to the list mid Omitting 
gift. J .Mortgage boeomee a aonree of acquisi- 
T ion of 0 •M nn rallijj by the rule of foreclos'd rt>, The 
nde bf Vagnavalkya csstnnothe taken to lay 
down enjoyment AS a lpnHe of acquisition nf 
ownership, as the circiiLnitanees under which 



1 pig* I6L. 




akCUujt aifuic nronuiintii. 



6S 



[CHiP. V, 



ownership is a colored are well recoin isedi in 
thy world and as his Ring)* authority cannot 
be eDnsid&rod sufficient to create a now on*, 
G-& Litem b ' s euying can nut be taken to be merely 
illustrative ah it is meant to tay down the 
modes of acquisition of ownership. Further an 
if ia laid down that the sinner who enjoys a 
property without being entitled thereto shatl be 
punished tike a thief, this negatives enjoyment 
being a mode of acq Hiring ownership. This 
any ing about enjoyment without title cannot 
be explained away as applying to enjoyment 
without the knowledge of the iiwner, Ji’or 
SCatynyanw lays it down as a rule that, a person 
who haa unlaw hilly taken the cattle, wrimen 
and slaves of another cannot rely upon his en- 
jriyment to perfect hia title and that it applies to 
his snn us well. Therefor* by argons that this 
rul e of Yagnacalfcya does not prescribe loss of 
ownership . 1 

Nor does it operate, he says, as a bar to 
any action in respect thereof. For according to 
bfarodo, am action fort he recovery of the property 
after enjoy meat by another for a prescribed 
period, fails, if the owner has been negligent in 
asserting liis right or has kapt quiet over the 
enjoyment by the other.- So even according to 



1 Mite,, pnpo Hi?, 

> rurndfl, CJl IV. r. ?b p 




DR IP. V.] FftlVClI'LEd DP ?(KhW t, F|*A HA (T* ,} GU 

Niirada enjoyment on wesson nt of neglect defeat* 
the claim hut due* not destroy the right to pro- 
perty. Similar eh the view of Mann. A parson 
whn enjoys the property of another who is not 
Bn idiot or a child, IS entitled to retain it as the 
action hy the latter for recovery of the name 
Would fail, 1 H would thus 1jej setm that the view 
of VignaneHV&ra tha t the rule of YagmtVulkyji 
is neither one of limitation nOr of prascriution 
is opposed to the clear wxts of Narada and 
Mann and Inn attempt to os plain away these 
texts is altogether unraft:0££ful. tlribaspalJli 
lays down that the real owner who allows liis 
property to he dealt with hy another as owner 
or enjoyed adversely to his knowledge cannot 
rmivi?]' it afterwards though his legal title is 
unimpeachable. Vyasa prescribes the period of 
auch enjoyment destroying the legal right to 
property to in' 211 years which is also the r^riod 
tlKed hy Y'ignavalkya for immoveable property. 
ttmuHt.be observed that while Narada merely 
lays down a rule of limitation Mann make* the 
right extinct with the remedy, Therefore these 
beite unmistakably establish * rule of limitation 
and thereby incidentally also a rule of extinc- 
tive or restrictive prescription. Till? inference 
mreives support fmmthu various texts including 
As text of Yajjcavalfcya fYerer: 2oj which. 



‘ Hand,, Ca. VIII. t . Ii:{. 




7u iFCIEST BlHDL r JtlDKiTCiln [CU-*#- T- 

illustrate ihe cos** of permissive pnasession and 
exclude them from lh* operation of extinctive 
prescription. While YagtlJlvalkya fistfis the 
period of limitation as 10 years for moveable 
property, Merichi limits it to o years There Is 
a text of Marie Eli CL tod in the Smrithi CJtftndrika 
to the effect that Cfl ttle , convey a nees, ornament#;, 
things taken with consent are liable to return 
within S years and that otherwise they ire lost 
to t he owner. M a mi aims aays that th mgs enjoyed 
with the ronRent of the owner Rich as COW#;, 
homes, camels and bullocks left for hring tamed 
always continue to he the property of the 
owner. 1 Thinge enjoyed with the consent of 
the owner either by learned HrahmanaH, king#;, 
agents Or by friends and relations, are never 
I o#t to t.he owner by such enjoyment. These 
texts dearly indicate that permissive pofeseadon 
neither dnthea the possessor with ownership rOr 
detracts from the right of the real owner. 1 

besides tli esc eases of ponui&iive fKiseession 
where peimiesicn is express, them are others 
of implied permission whore possession cannot 
be construed to the detriment of the owner as 
heinfr adverse, M anu and Yannavalkya ex- 
elude boundary marts, property kept in pledge 
sealed deposit or bailment, property of minors 

L Mbdb, Ctt. Fill. t. liS. 

1 Mim- H p m &Sb. Oh, p. ]£?. 




ch*p< Yi ] minims hkhif (Tn^iaFAr) Vi 

wflinen, property of the king, and cif the kfirncd 
BrahmS-POS from the category nf those liable to 
pCSSCSOOry ownership.’ stnjnynient by one's own 
relations agnate or cognate may also he traced 
to tEie Implied -consent of the owner. Katya- 
yana adds to chis list the property of idols, as 
the latter a j e not capable of asserting their 
right anti preventing hostile enjoyment This 
has some rest? m hlfinee to the modern law by 
which tfURt property lr in bo me oaseR hddto be 
outside the operation of the law of 13 m itatkm- 
A r-oerdi n g tn Narada, a student engaged in 
study, nr a merchant resident in o foreign 
country, may claim his property after return 
home -within 15 Cur twe-n !5fl JOflre. ! 

Adverse enjoyment during the period of im- 
priErmment of :i person docs not count- Against 
him. These rules seem to lay down the law 
of extinctive or restrictive prescription, though 
son!,? Snu'iti writere have SOnatriied them as 
indicating that the owner runs the risk of 
losing his property in emisetiiienre of enjoy- 
ment by another for the prescribed period, 
thereby *ome cloud beiit-g 1 cast upon his title and 
the probative valine of documentary apd oral 
eviJtjnce being weakened by such s decree 
ediovm^int. These rules may ol?o ho under- 

J MiOLi, Ch. V ET | r r, 140 T,fc Part if Cb. It. *. 25, 

* -Hcih Cfc, f>. -5£. 




*KCIUfl. HLHKL' .1 il nK'tl.'HE . E.sF V 

stood aa Laying down that until the pfthscrihfcd 
period, r si t== owner rant the risk of bv^rtti his 
property, while after the expiry of the ueriod. 
the apprehended rink heenmeR an 4iat EtbtiHhed 
loss. Via nanet-w era's explanation of the text 
of Ya^navalkya os referring to the 1 ms of 
produce during the period of such adverse 
eisfoy ment is far- fetched an d u nsu pported by any 
othor authority, Vignaneswara hi ms#! if fe- 
oOgnisjea in a way acquisitive prentripttijiTl in 
reapuet Of [cutvealiles^ This rule of Y agHa- 
vslkya seems therefore to indicates rule of 
limitation and of prescription in accordance wilh 
the views of Mann, N&ruda, and Marichi above 
referred to. The rule that: the usurper never 
becomes owner though the hitter i? deprived of 
has property accords with the modern rule that 
limitation may exoinRiush the remedy hot out 
the right Narada and Hareetha inv-ast enjoy- 
ment for 3 generations with legal owEi-rship 
thoufih the original possesion was adverse and 
unlawful. Yagnavalkya adopts the rute of Mann 
cited above excluding some properties from the 
oifect of suL'la adverse enjoyment as on c.seep- 
tiop lo bis rule and this clearly bears out the 
interpretation put upon it. a* a rale of limitation 
and prescription, Ah a matter of fact this inter- 
pretation of YaEitavaikya’e text has keen ac- 
cepted hy some of the Bengal Jurists like Ragim- 
nnndhana and JaR&miath Tarka PauehanaTia, 




CHiF. T.J rMHCn-LE; l-'K h:>" (.HhJ.1) ASii.J 7 IJ 

fjittifjth of poxfttfftaio/i : It haa beOn stated 
ahovft that lawful possession ripening into legal 
ownership must hfi of Inns duration. Brihas- 
patE says it cannot be for less than 35 y^am. 
which Is the period of otio generation. Accord- 
ing to Vyas& if is? 30 yean, Rut both classify 
the enjoy orient according te> the number cd 
generations covering the period nf enjoyment 
and value it in amending order, If the 
enjoyment o*cftH>ds 3 generations it is called 
immemorial enjoyment. The first usurper has 
therefore to pirn™ his tide and possession as 
against tile adversary who claims the property 
thoueh in the case uF hia sons and grandsons 
possession alone may suffice to deduce tide. 1 
Immemorial enjoyment or emjoyniem for 3 
generations laism a presumption of legal origin 
and dispenses with snyiof oF legal title as stated 
already. Both Hareetha and Nani da go the 
length of saying that sue it enjoyment for 3 
generating though unlawful should rot in: 
disturbed. 1 

Pfmi a/ pQ3te*sio(i • Possession is bast 
proved by the oral evidence of the actual culti- 
vators of the Land, of the villagers, or of tin i 
neiaiiboMnnig land-owners, or hy documents. 

T I Km. t>_, pige j n i 

« 'Mi i n ju,fm ifd- in 1 E$J ; d-d, Ca, pt** 168, 

* N -dd-i j* il J Oj. p +i;«* 15 i H-nil isa. 




74 jlSiUEST HIS JH JFJUfin-HK- T- 

Thfs lAkos us to the subjects of oral and 
documentary cvldtnoe. 

Notts, tv Chapter V, 

1, Immemorial enjoyment raising n pre- 
sumption of legal origion under ancient Hindu 
law ppemf? to have a dcae resemblance to the 
presumption of lost grant, raised in the English 
law. It would h&vu trfAsn observed that the ancient 
Smritis insisted on tba legal origin of posses- 
sion as indicative of ownership and did not 
recoRTiiie unlawful pnrsesaion for however long 
□ Time ripe rung in io legal title. Ancient Hindu 
Legislature nurtured in an atmosphere of exact- 
ing morality and high spiritualiry could not 
reconcile itself to the Immoral position of 
raising long unlawful possession to the: pedestal 
of legal ownership. Under Ancient Hindu Law 
a mere trespasser eou2 i never hope to clothe 
himself with legal ownership however long bis 
adverse possession might have been, unless he 
had a fair title as well. So strong ls this moral 
consciousness of Vignanesvara and some 
femriti writers that they would not accept 
even what appear^ to he the view of Yag na- 
val kya that prescriptive enjoyment may bur 
the remedy but not take away the right. The 
modern law of prescription cannot he supported 
on any ethical basis but is founded on the 
principle of sKpedieney. On a comparison o-t 




v. } rwHOIriies ui SBour- ) ?I5 

the Ancient Hindu Law -with the laws of fithsf 
countries, Di. M&rlsby s&ys in his " Elements of 
Law 3rd edition, L*aee23Qi ^The objection 
to tlie English Law is. that it does not take 
sufficient notice of the distinction between a 
holding by wrong- and a holding under a de- 
fective title but give* the same tiicd period of 
prescription for nearly all nafitis." 

i. Tlie properties of women, idols, and of the 
State were p™fiprved with ?cru pylons care under 
thrt ancient Hindu Law. Any jpn^th f>f enjoy- 
ment of such properties neither vested owner- 
ship in iho pLiegH&acn' nor deprived toe real 
owners id the right of recovering them, The 
property of minors and idols was thus kept 
outside the scope of limitation and proscription 
as in modern law, 

3. The role Which innistaiJ on delivery of 
possession -ih completing legal title wasg whole- 
some check on the execution of sham and 
colorable documents which have unforlunately 
hraJomc a very common feature of Indian lit i- 
fjAEim in recent times. Benimi Ira 03 . Lotions or 
sham documents we™ foreign to the ancient 
taw of India. The idea of a benanti transaction 
was i foreign importation made perhaps after 
the Muhammadan conguest. Those who have 
any experience of the Indian Courts will readily 
recognise the enormous amount of mischief 
which the benhini transactions are creating in 




70 iraiLM ailKIIL" Jlf LjrcimjlE. V, 

India by promoting lifisdtefH: litigation. Ail 
eminent Indian Judge of the High Court uf 
Madras has characterised it ns demoralizing 
litigation in this country, The support siven 
tti it. by the English Judges administering tiir 
Indian la« on the supposed. analogy of legal 
and equitable estates familiar to the English 
Lawyers is due to the ignorance of the real 
spirit of ancient Hindu Law and perhaps a 1st* 
due to a pardonable desire to give efifewt tn 
what they, thougli. erroneously, consider to he 
the prevail ine sentiment of the Triple, The* 
RritisE] Judicial system in India whh unfortu- 
nately obliged to give its lugal sanction to these 
transactions which were in vogue among the 
people of thfc country though it is opposed to 
the spirit of rSrirUh jurisprudence. These benanii 
transactions while tending towards general 
demoralization of the people seem to exercise a. 
very depressing effect upon trade. The com- 
ply Lilt very often made that indigenous trade 
in this uounti-y does uot attract tjy way 

of investment may lie traced to some extent to 
the habits of the people who indulge in benami 
transactions. The Indian legislature lias already 
interfered in discountenancing benami jwr- 
chases through Court. It is high time Lhm tEai» 
restriction is extended gencralty to all henami 
transactions. 




CHAPTER VI. 

ORAL EVEOENCF. 

The seowid method <>f Eiumtiu pruof is by the 
testimony of witness 

It'jYnessffl owf their cAaractengtics ; A 
witness is a person other than the paity who 
has so rue knowledge of the transaction in dis- 
pute. A heroines a witness according 

to Manu either because he has seen something 
or heard something," Witnenw are of two 
kinds:— lL $?l Krita (cti™en> ; (£) *fpr Akrita 
(casual), Krita witnesses are of ft kinds and 
ALrita witnesses are of 6 kinds, according to 
Natalia. ' 

The Kvitti witness are rij fefcnr Likhita 
(one who ban been purposely brought b 
attest, a written instrument). If hv Is 8 
signatory he is called a Likhita or 

one who can write his naine himself, if not lie 
is called Ltkita (markarnan) or onc- 

who gets hi? name written by others.' (?) 
Wife, Smnrita, is one who lias 'been asked to 

1 Sutra Xectbi, CL- It". Sub-t^Cti-Ml V- T. 90S. 

* Hanu, Cb- Till v. 74. 

> ■ N*W*, Cli. IV. r. U9. 

1 HatMtfaa. 




n 



JLJfCTlS^IT HlXSL" J L : DIC.ITL KE . [CIUI' V L. 



witness a transaction and reminded about it 
finery time the transaction takes place. | 3 > 
^Td-^NIrlY ad hrieli cb agit ta , is on e who h as caeu a Lly 
uorne at the time of die transaction. [ 4 ) 

Good ha 'Hak'fil] L is one who has been asked by 
the plain tiff 1o hide himself in me place and 
to listen to the words: of the adversary. (5) 
Uttara Sakshf [gone who, having listen- 
ed to the statement of a person who i& about to 
die or to travel abroad about some disputed 
transaction, is called upon to speak lo it. 

The Afcrita witnesses are l— 

1. The viDageri, 3. Judg£, 3. King. i. one 
who has been authorised to do any & c t, 5, tile 
person deputed l>y the plaintiff, fi, memhers of 
the family in matters affecting tile family. 
Judge includes the olerk of the Court and ihc 
members of the assembly.* 

The credibility of each of tliCae Krltu 
witness^ excepting thore who haw* attested 
documents is gauged by a time limit according 
to Hareetha, Witnesses to a document may ho 
believed after any lapse of time. Smarita 
witnesses cannot he believed after 4 years; 
Vudhrichchagata witnesses after o years- 
Linorlha witnesses after i years ; and Uttara 
w Itnensps after the expiry of one year. This 

5 fliiLjiBpithL avd Sun,, On, 134. 

1 Siwidn, Oh, IV. ?. lr*Q U> 152. 




i j 1 A I. BVIDftSCK- 



flBiP, 71.] 



73 



rule however seems lo 1>e merely directory 
without Lei ng mandatory as he adds that e^uer- 
atty the testimony of a pernio is depen^nt 
upon his mental capacity snd power of memory 
and that ku long as those remain unimpaired 
his testimony may be accepted *von after any 
length of time 1 . 

Akrita uJitll&ateS the vithnsew hr- 
ciome necessary witness?^ ill cases of murder or 
theft occurring in a villas or hi lioimdiiry liia- 
potet a rising therein, The Judge as well as the 
members of the judicial assembly and the clerk 
of the Cours m ay he required to pro re previous 
decision:; i,u pines of n>& judicata. The king, him- 
self though ordinarily exempt, may l>e obliged 
bn give evidence about any matter coming to 
his notice in the qoutso of an enquiry. A person 
who has been by consent of both parties deputed 
to do a certain ael out of confidence in him or 
the person who is employed as the common 
agent of both is equally eligible as an Akrita 
witness*. In partition disputes and disputes 
&Ijoul loans, members of the family of both par- 
ties who are actuated by IJharma and are 
impartial may be chosen as witnesses". 

m .[*>■ quality of the- witness : — 

^Ordinarily there must lie at least 3 wit nesses 

1 !irn. i"!fa- liifta JS.v, 

* Sen. ct, ftLftd L73, 

' Hur^Ebu and 5m. Cb- p. LFifl. 




rtll iSCUUTt HIJTJI-J .tj ijii:,' ti.'K k, iflll J', *L. 

who havo good understanding, perform penance 
who are E-ensrous* bom of good family, lovers 
of truth, wiio are guided l>y the principles of 
Dhunna, who are straightforward, who bear 
ho hate or ill- wiLL who have sons* who are 
wealthy, and who perform the duties enjoined 
by the Vedas and Smritie 1 , Even one or two 
persons well verged in Pharma m a y be com - 
petent witnesses on consent of both parties- 
Two witnesses may suffice out of Likhita and 
Owdba witness described above 1 . In the 
ease of ac-lione relating to adultery, llai-ft, insult 
and violence, any immon may bo a competent 
witness if he is not affected by defect of charac- 
ter and if liia evidence is not vitiated by previous 
contradiction. Preferably witnesses of thu same 
caste or order as that to which the parties 
belong should he examined 1 . Women witnea&p^ 
should be preferred where women are con- 
cerned 2, , In disputes hetween merchants, other 
merchants or the members of a guild should be 
chosen' 1 . In the absence of these, ethers may be 
examined provided they are free from any of 
the grounds of incompetency. 

» Vicr. firt II, ft. V. r. CiS and S3. 

1 Va,n. PdjI II. Cb. V. t. 72 ; Kinds. Ob 1?, r, l#i, 

* »rr, Cb. p. 1 74 . 

* Narnia, Cb. IV. p. 15*. 

■ Mbbo, Ch. Tin. v. P . 

* Bfirtdp, Ch, IV. r. Jij. 




obae, jmuiFCk. 



mtr. ti.J 



81 



— The following 
are the five main ErOimds of inetftnpetency 
ariainfj from 

(I) (Vaehaiiaji? written authority. 

f^) ste -Dosha) defect of mind or 

character, 

(i5) :J3hedaj contradictory Etate- 

raantB. 

(4) fSway&mufetir volunteering to 

give evidence. 

1 5) Mritnntftra (The witness who 

becomes ineligible after the death of either 
party, who had chn&on him as a witness Or on 
uccount of the non-ciifctenee of the thing for 
which ho was cited; 1 - 

According to written authority a person 
engaged in the performance of VcdLc rites, 
one who follows Vnnu pra&t hasrflma y-nd cl 
wandering ascetic an' not to be cited as 
witnewes. The king alto is exempt from giv- 
ing evidence. Artists and sculptors are not 
competent witnesses on account of their natural 
inclinations towards acquiring wealth and of 
being swayed by pecuniary considerations®. 

The defect of mind affecting the c&pa 
city of a person to- observe clearly h to under- 
stand properly, and to express correctly, 



1 Jfirwb, OL IVr t, ]6? ta l£2 srjij Sm- Cfr, p. ]£?, 
* fim. Cfi, p. ITS, 




tfj ][iyj)T ■vuiniiL'HK. [chap. rt. 

ejeMfl-s &u-ttis pennons from the category of 
competent wititessea Women, aged person* 
over SO years, aild infants below 16 year* of 
age, n™ incompetent witnesses. Similarly per- 
^rsi-LP. m mental distress afflicted with any disease 
*vr . h aa leprosy, drunken and mad persona, and 
persons who are defective in any organ. of sen** 
are* not competent to give evidence. Defect of 
character [nay arise out of interest or bias 
towards either party. Persons havi hr interest 
in the subject mutter of the dispute, the friends 
and relations and dependants of either E^rty, 
and enemies of cither party should be avoided 
ds their evidence would bear obvious bias. Men 
of avowedly bad charseto!- such as sons uuarel - 
ling with their fnthera, thieves, chandalae, out- 
castes. persons of brutal instincts, men of bad 
temper* persons addicted to gambling, deceitful 
persons, men accused of heinous sin* or crimes, 
and proved perjurers and former* should be exclu- 
ded 1 - Narada specifies in detail person* follow* 
in* various professions and others as undeni ru- 
ble witnesses*, However, in the absence Of 
(jualified tritneaes any one who is not a friend 
or enemy of either party may be examinod 1 - 

* Yatf Pari II. Ob- 5, V. ind ?1 ; Mhcti Cb. H, 
*. S3 [n fie'. 

1 Narad* Qk IV, t, 132 to 136. 

*■ i'lrad* Cl- IV, t. ISO; 5h. Cb. pa£& *B1. 




OcaJ, AT-ns^nE. 



HH 



CHAP. Tkj 



Til# rules ns to eompcte-nfiy of wltrifiKHns haVG 
noces&ari ty to be relaxed in the case of offences 
of violence, etc., or i a respect of arts done inside 
a house or a forest and in eases of danger to life. 
Narada would shut out even in such cases the 
evidence of children, women, relations and per- 
jurers and fonpeirs. He excludes them on the 
supposition that children are usually devoid of 
understa inline, women are habitually prone to 
lying, and relations are always inclined to par- 
tiality, and that others indulging in forgery 
and perjury are by practice always deceitful 1 . 
If however 'these- disqualifications appear in a 
minor degree their evidence also maybe receiv- 
ed though with some can t.inn in. oases of offences 
of violence, etc. 

A MritLintiirA witness was one who had 
lieen cited by a plaintiff or defend ant as a 
witness to iiuy transaction, and who wag 
subsequently rendered ineligible either on 
account of ihe non-existence or the subject- 
matter of the depute or on account of the death 
of the party who had died him as a witness. 
This was done either at the timu of death nr on 
Other occasions. These witnesses, however be- 
c&cno competent when the suit wag allowed to 
be continued by the sons or grandsons of either 
party. In eases of bailment and debts du& to 



Unradi Oh. IV, r. IS* to 193. 




64 iKiur HiFE-Ti JimiciTini. [ceap, ti 

the deceased thes* wiiheaeea became competent 
when dispute* about them crapped up 1 . 

The mtes for the appreciation of evidence 
are laid down below. The testimony of wit- 
nesses at variance with their own. previous 
statements; or with thns^ of other more credible 

witnesses cannot bo accepted. It is in this sense 
they are regarded as irscoinpcteiit 

The parly citing a particular witness is 
alone mi titled to examine binx His relations 
Or other? authorized on his behalf may also 
examine such a witness, A witness cited by 
one person bat examined by another person is 
guilty of volunteering evidence/ A purport not 
cited or summoned hut offering to give evidence 
is a voluntary wj loess liable to punishment 
irrespective of the truth or falsity of his 
evidence/ 

Product io/t of oral eridevre.—' The attendance 
of the witnesses was secured very much in tilt 
same manner as the appearance of the 
adversary related in Chapter III. Some of 
the rules applicable for the compulsory 
appearance of tlia parties applied to the 
witnesses as well. The witnesses summoned 
were paid theft fee called Purtjalifthhrii i 

* Mil*, page Hi g*i, Ofc, H& 

* KibvK.vi.jA ted S®, C - l ■ h j K- Lt3. 

* C6. IV ed SwtwQ V r. 1SBL 




KVIDIFCi. 



7P,] 






ftsi-d a!ao their travelling expenses in 
proportion to the suit amount nrtf exceeding j of 
t fo« amcnifl t, The arnoun t so spent by tho p&rt y 
wiw recorded and eventually recovered from thy 
defeated suitor. 1 

The competency of each witness wag first 
decided before bis examination was com- 
menced. As in the case of documentary' evi- 
dence* obvious tltjf oc-tH of mind or character in 
respect or the witnegg tendered were noticed by 
the Chief Judge or the mumbiHrs of the assembly , 
it being left tii the opp^it^ party to brin^ out. 
the latent affects, * As in the case of docu- 
mentary proof, rt also in the case of oral testi- 
mony atl objections about the competency of 
witness?* wpra to Ipo pointed out before the 
conclusion of the trial itself, Any latnr dis- 
covery did not vitiate the decision- Nor could 
the soundness of the judgment he impeached by 
subsequent attacks directed as co the quality of 
the oral evidence adduced bat not detected 
beforw-’ Th Ir- prohibition applied to the compe- 
tency as well as the credibility of the witness + 
The witness was cjiiestioned as to his ewtiputeacy 
Or character and his answers wt*re recorded. 
AnytwklesK attorn Eit At discrediting a witness 

1 Mr. S’jiroiL BuLr/ft Trailfllatiim uF irtifi Stutri, 

U Ch- I. FJ3li* 

* Sm. CJl pS^d 19 b 

* Bfibtspfti ss^ $ng. Oh- p*^fl tlfcii 




86 jnPE 3 A.TTTHI. [CSEiP. *7 

was punished with the same penalty inflicted 
on a false witness. 1 The discredited witnesses 
ww'P d isrardeil and the Ursa) proceeded with the 
fiicaniinatfcin of ether witnesses if any. If no 
other proof be forthcoming, the party tendering 
such evidence which had been rejected shah be 
deemed! to have failed to tabstanlia-tfl hfe case. 5 

Mods of record j\nj ecid&nae . — After such 
preliminary examination, the witness^ who 
have heart HtEirnnened and are present shall be 
questioned in the presence 0-f both parties after 
having been told the tonsftrjjeheea of untruth*,. 
According to KiSyayana, the Pradvivaka shall 
question the wiineBHfiR one by one after having 
fiWOrn them that, they shall Rpefllr the truth ir 
the pmence of Gods and FfrahmansL* The 
method of swearing is prescribed by Manu, In 
the case of a Brahman, he shall be told that bis- 
merit of truthfulness shall periRh If he speaks 
falsehood. Ln the e&se of a Kshtriya he shall be 
told that h L:-- vehicles and weapons shall become 
ineffectual if be should swervtj from truth. A 
Vyaya was told that hie cattle and seed -grain 
would l>ocoma devoid of fertility, and a Sudra was 
■mailc to invoke a II kinds of sin if he should speak 

3 llTLhr.gp^rj, 

■ Mill, pa^B Jifi and 3m, Lb. pjffE 193 and 194- 

* Mb-du, Oh. TUI t. 79. 

* T^Fulil, Ctt. Hi. 73 to 75. 




CH IP. Tt.> 



Okt , !, BvidtKCBi 



57 



fatseEitxtdi. 1 If a Brahmans or any one of the 
three higher clashes folla-Wp flmy of the foUowin-g 
pmiBSitionfi, nfz.. tending cattle, trade, singing, 
service under ary person, and usury* he ehal! he 
treated as a Sudra for the putposes of swearing* 
Sadrs v* i Inezes shall be 'told that if they speak 
on truth the sins called y^NJtf+ and flfTOfiff 

Pataka, ITpapataka and Mahapataka shall 
descend on them, that the worlds which await 
those who set fire, or kill women and ctoiUrth, 
shall receive them, and that, in addition, the 
spiritual merit acquired by them in former 
births shall ‘ho k> the person who is prejudiced 
by their false evidence. * This exhortation was 
intended apparently to frighten the -mltnesH 
about the coiweauenceg of false evidence.* 

■ 7 ho witnesses shall he questioned either 
before the judicial AKsamhly or on the precincte. 
of the im moveable property in dispute or in the 
view of the artjcle which is- |he subject- matter 
of dispute.* In eases of killing. evidence shall 
be recorded in the presence of the dead body or 
in if? absence i R the view nf any of its limbs. 
In all cases the evidence baa to be takan lit the 

> siiou, CK VII! r.SB; Ninth, Cb. 17 , t, iW> 

■ Mitiu.Cb. 7111 t, JDg. 

* T.f,, tot II- Cb, V # r, 73 t» 75. 

**Unr*ili,Cb.lV, r. ECO, 

1 23 eh, Cb- page £p&- 




i*H.Tfll<T flL&nG JPDK7ATTTET+ [CJUl' YU 



presence of both parties and nftvw pretty nor 
should the ax&mi nation of witnosa he unneces- 
sarily delay ed. 1 

The answers of the witnesses ns they are 
naturally giwn to tho quiwtirine shall bo taken 
and they should not bn; praHKiad again and ag'iui 
about the same matter. 1 , They should relate to 
t lit: questions asked and should neither erceed 
■ hii LiUvHtion nor fall short of it + in actions 
raiating to definite tangible property- 4 In other 
actions suoh defective statements may be ac- 
cepted, Any inaccuracy in respect of any of 
the esHsntlai points an to time, pface, stators, 
age. oantp, amount of money, ate-, is iiferLy to 
detract, from the value of the evidence.* 

jSfotfe of fiflprtxiottc/n of evidence .-—When 
there is a difference between two sets of 
witnesses, the statement of the larger number 
sbail be accepted. W hen the number is equal* 
the statements of pertoros worthy of credit 
should be preferred. Among persons worthy of 
credit those who are soperier by virtue of ihs 
qualifications enumerated a-bow deserve better 
credence 4 Though only a few worthy of credit 
give evidence it is better than that of a larger 

1 SuJu* JiMtlO, Cn. IV Suls. 3aa V. >. iLJ.i. 

* MiiL, pi^v 155 ; *ofl S«. GUs- SCA- 

* Narada, cb. iv t. -m ard am. 

* Sm, Ctt. Isftfl ahrf S1Q 1 . 

» Tig, Put f I. Gk V. t. 70 . 




otl.ll, K I II K P-K K, 



ClUPr V|rj 



Up 



QULfc'ber, as even a single witness Tflftjf ha pre- 
ferred m worthy of credit on mutual consent. 
The diS^uaLifications imposed UlH>n 9- wiCntHH on 
account of previous coEitradietory statamentii is 
a general one applicable to a) I witnesses^ The 
appreciation of evidence by demeanour is 
referred to in Chapter IX eu connection with the 
tuJ«6 relating to the conduct And demeanour of 
jparti&e and witnesses. 

Rjrfex of proof h'j witness#* : —A Cfuwe ia 
said to have been proved when the witnesses 
speak to it as true. It ss said to fat! when they 
disprove it as FxUt^ When the witnetseg nre 
unable to ptwve or disprove a cause owing 1 to 
lapse of memory, ^ther (nodes of proof should be 
reMrtod to. When one set of witnesses speak 
to a part 0 uU r fxut,. hut- more trustworthy 
persons spes-lt to another, the former are said to 
bo perjured WitsiassOS according to the following 
last of Yuguavalkya : 

f'^T Wf'tTtUT i [ 

It might perhaps be doubted whether it is 
opfiji* to a party to adduce more evidence 
when Uie first set of witness have been 



1 Hit*. lxnx l!U- 
^T:,p. Py fft il.Ch.Vi, 70. 
* In* r Piit II, Ch. V t* set. 




St) iPfCBCf? ITlXSC JHOJCA'TC'K.lf. [CFTJkr. t| 

ei-Amin^d and he is not satisfied, with it 
It is nn doubt said by Narada that whan 
Once the matter has bHn decided fresh proof 
Cannot he Adduced. Til ft explanation for this 
rule of Na radii is simple. The proof of a CS-uae 
depends upon evidence. 3F a patty unconscious 
of the defeat in tEiC evidence Adduced comes 
to khow of it- afterwards and thinks it is not 
grind proof what is there to prevent him from 
adducing fresh proof? For instance, it' the evi- 
dence of a witness zr found to he adverse to the 
cause, owing to sn-mp defect in his organa of 
sense, though DC might not have been discovered 
before, it may bo set right, hy other evidence. 
So also fatso evidence may he teoted hy other 
dddetice, Kaiynyajia says that the evidence 
of a witness shati he tested hy the Judge and 
the assembly. The proof boeomes clear only 
when evidence: is so tested The test os" lime 
evidence does not consist in its being fnvour- 
ah]« |o One party or another. In the (absence 
of any reason showing the evidence to he fatso, 
the cause itself must be held to be false. 

The Objection therefore, that fresh proof 
(should not he adduced relates only to adducing 
Such proof after decision* and not before. ' The 
teit of Narada above cited only refers to such 
h period- Therefore it is settled that a party h 
entitled to adduce farther evidence when he is 
not satisfied with the first. But the further 




CfijF. 7i.) <MI* L El'IDEfdl, S ! 

usd more satisfactory evidence lie proposes: to 
let in ititMrt have already bwn intimated, though 
net available at that lime. Even if (he names 
of witopafiflH have not been intimated before, 
they may however be eKaminad in prefatenee 
fft divine proof. In (he ahteoceoF ihe-ae, divine 
proof may be resorted to in the Last instance. 
After this., no further proof con lw adduced 1 . 
This rule is interpreted by some as pcr« 
mining the defendant to adduce more trust- 
worthy evidence, when he finds the witnesses 
cited by the plaintiff support the plain tiff's cose 
bat Vi£nane$wara£ays that this Interpretation 
cannot hold good as the defendant usually has 
got nothing to prove. The plain tiff is the 
person who ha*e°t some thing to prove and the 
defendant is the one who usually denies is and 
denial does not admit of proof by witncanea. 
And besides, the hurdtm ol proof depends upon 
the nature of the defence setup. Though the 
burden O 1 ! proof Is on tha defendant in pleas of 
remfefision and avoidance and rm }vdi±xita and 
on th* plaintiff in plea? of denial* still accord ip g 
to the rule that there can be only one kind of 
proof for such action the ubuve Interpretation 
is usiiersable, Vignanaewara (Links it may be 
interpreted in a third ^aj\ When both plain- 
Strand defendant duinr a certain property as 



■ Miu., P . l^iTjdlsr, 




93 iXCi«s* JODIairOH. [flHiE. vs. 

having bean jarml by inheritance without EfpeHiii- 
tying when it war acquired each may adduce 
evidence of his it tie. In weighing the evidence 
on either aide the evidence of the defendant 
may he preferred if it is superior 115 quality to 
that adduced on the phi miffs aide, Here there 
is no proof of denial and it does not offend 
against th* rule of burden of proof varying 
according to tho nature of the pi eaa. Double 
proof is no doubt not panmififtibk in a single 
action but when, the action itself is of a dmible 
nature sorb double proof is permissible. Ha is 
of opinion that even such an interpretation is 
opposed to the spirit of the rule enunciated 
by Yagnavalkya'r A similar rale laid down 
by Katyayuna is interpreted, by the author 
cf'tlie SmrstsehaEsdrika. uh applying to cases of 
review*, 

to give evidence.— U a. witness 
having been sworn as above does not answer 
the questions put for a period of 4 f» days, he 
ahull be made to pay the entire debt with inter- 
est and also fa of that amount in addition. 
The entire amount of dbbt shall be paid to the 
creditor and the king shall take the 1/ltitft 
part m fine 1 . According to Mann if thtfwit- 

J WOi, 1 SB and 3 57* 

* Sm,Cft H p, SIB hmTSIS. 

■* Taj. EirS ]I r Cb- V, Tr7fl, 




VF1L ■TIL5K3I<.!*. 



fir*?. Vi.] 



TO 



tiwiE ia afflicted by any disease or prevented by 
any act of God ur act of State from giving 
evidence be shall lie allowed 3 fortnights after 
which he ip liable to punishments, 

■If & person being wfdl acquainted with 
the facta of a vase refuses to com a Arid give 
evidence he shall merit the aiu of persons who 
have given perjured evidence end shall 

receive- the some punishment \ The decision 
Arrival at in pursuance of tutored evidence IB 
liible te he set aside on review if it is &o dis- 
covered f . 

Whoever having Agreed ■ to -Rive evi- 
dence along with others afterwards refuses to 
give evidence owing to ill ■feeling Or other 
cause after the others liav e deposed , shah las 
punished with a fine amounting' to 8 times the 
fine t» he inflicted on the unsiiDoesgful party* 1 . 
Tf he is a Brabmunii unable to pay hits fins, he 
shall he banished Irani tile country. The banish- 
ment shall he preceded by certain acts such 
an stripping him of hia clothes or depriving him 
of his house, according to the nature of the 
subietst-matter of the action. In the caste of 
othei's unable to pay such fiues. they shall he 



» Muu Ch. VIII, v. (Or^Sin. Ck p.SIS, 

* I'ni r. ffctt II Cb. V* *. 

* "m*jd.csl viil.T. it:. 

- Tag, Part II, Cl. T. t. 62. 




U4 aPCHWT lIJSiLUT JDDKiTL'Iitr VI, 

compelled to do the work suitable to their casts 
or occupation or he put in jail bound ih eliains- 
Th it rule must be olworved even in The case of 
fines inflicted for Hiving false Evidence. When 
all] thf! witnesses refuse to give evidence all 4W 
ec|Uftlly liable to punishment. ffatyjiyansi says 
that persona who make contradictory state- 
ments with a view to nullify the affect of their 
testimony should be punished. A party should 
not ha V* 1 any secret interview with a witness 
cited hy the adversary and one found doing SO 
with a view to win him over to his side shall 
lose his case a wording to Narada 1 - 

Punishment for falite eiriffmce— The parson 
who procure false evidence by offer of money 
or other inducements, find the person who gives 
false evidence accordingly, are both liable to 
double the punishment inflicted on the defeated 
suitor, [f be ia :i RrahmanA he is to bo exiled 
without any other punishment. This is the 
ordinary rule applicable when the motive for 
giving false evident is no* ascertained or when 
it Knot a case of habitually giving false evi- 
dence, In the two latter eases Maim lays 
down the Following rule. If the ■false evidence 
has been given cm account of greed for money, 
the punishment is a fine of 10Q& panama 

1 Mita. psk™H SsndiCb. IV. f. 166. 

* tfaj;, Rirt II, Gb. V, T- SI 




OSUI EV|»miCfl. 



-C 5 IA.P Tl-J 






^copper), if it h owing tjwmtmisappraliMBion. 
the puniuhrtien t is one laid down for 
(FoorvaaaliLLsm) ; if owing to fear. punishment of 
(MadhyamBsahaea;) t if on amount of 
friendship, it is four times that laid down for 
Boorvasahasft ; if on account of hist, it 
is Ltl times that lu-id d iWti for f if on ac- 

count of ha tred, it ie 3 tlaies the puniehinont for 
iMadhyainnfiahasfO ; if on account of 
ignorance. Lt is 200 copper coins i and if On 
account of youth it is 100. The same punish - 
[ntnt is to bp observed in the cosh of habitually 
giving false evidenced Tin; three inferior C&stes 
ar? to t>c punished wiih. fines as aforesaid ill 
addition to corporal pun ish ment . Corporal 

punishment may tatc the farm of cutting off 

the lii^, cutting off the tongue and loss of life, 
according to the nature of the false evidence. i 
The Braiimana in addition to fine Is liable to be 
banished from the country, stripped of hi* dott- 
ing Off deprived of his house. The different forms 
of punishment presetted fur the Brahmanas 
shall vary according to the caste of the parti&y 
Ot the amount involved in the dispute or other 
■dlCUUiStaUOBH, When the motive for false 
evidto&s is not aseftTfainfidor when It isn casual 
instance of folse evidence* ihc RrnhmaTiu is 



i Manu <Jb. VUI *. 1530 in- 1ESS. 
* fiUuu Cb. V III t. 1U5, 




S& j>ciENr In Set: JUtisCiTirm. |oh*v, tj, 

liable Ohty to fine, like a Kebatriya, if the 
dtupil ta It of a trivial nature. In more serious 
cases he is i (able tn haniahinent. Ths Brahman n 
ss never liable to corporal punishment.' 

When fnhit? midmfX is permi^Silf >— 
Giving of false? evidence SS Well at refusal to 
give evidence \s always prohibited. There is an 
exception to this Tide which arises in the ease of 
perenns who are 1 id hie to be eon Jen mud to death 
when a witness sdiall not speak the truth and 
ra^y even speak untruth. 6 Where in case? of 
offences bated upon suspicion, speaking truth 
will entail the death of cither party and sfjftAk- 
sng false hood will lead to the death of a third 
party, not giving evidence is permissible if the 
king allows IL If the king insists on it the 
evidence should he rendered futile by contra- 
diction. Even If that is not possible, truth alone 
should ho gh e-noiit, otherwise there is t.he double 
sin ot" giving false Evidence and causing the 
death Of another person. One of this is avoided 
if at least truth is spoken , f If is laid down 
that false statement is permissible in joking, or 
in relationship with women, in effecting a 
man i age, in loss of hfe, and in total deprivation 
of property , 1 

1 Btila . png* 1 S7 aud Sir. Ct. pag, - . S] 5. 

t Wind, Ct. VIII p. ](Uf Tiff. Fa* ]1 C&, V. r. SI 

' M Lta. pHg* 1 5$. 

4 Man Ur Cb, VIII v , j Y> i jLii Sqj. CL. 2 OH 




ns/i. ktibtncIl 



UEAFl V!,| 






Oircu nts Hi ? ! eWcfericp 

Nmrada m^tiSEonsCj instances of circumstantial 
flvidsiKO- Possession tif a torch in a Ceae qtf 
naiechiiftf by np> and pcrfReF^ion of an instrument 
in PBSW of grievous hurt lead to an inference of 
th* (lorcmiasion of crime, A ma la found dallying 
with. the hair rtf a woman may be suspected to 
be guilty of adultery. A person found near a 
dwtwyed bridge with a hoe in his band miy be 
deetasJ bo be liable for anch damage, The 
nutting of a forest- may 3je FEaed On a person 
found emerging from it with an eixe in hie hand. 
Presence of injuries may raise an inference of 
guilt in the person charged with assault.' Simi- 
larly the pos^ftRiou of sfoli'o property acoo-rding 
To Sank ha and Likliita is ptima fade proof of 
theft. A Caution is however added that these 
tippet! ra nets of guilt rauEt nat he accepted utl- 
nffiJOiTCedly without far the’ scrutiny and in the 
absence rtf other corroborative facts* It is 
pointed Out fur instance that injuries maysonifr- 
timee be self-inflicted. 1 

Notes to Chapter VI, 

■ 1. Ancient Hindu Law moisted on higti 
inorut qualification* in a witness and did not 
permit of any one being picked up from the 
^tr-eete or from the Court prciutaet and! made fo 

1 NttarUCh. IV r. 172*0 176. 

1 Uni. Oil. pier 2£l, 




iscmrr H:a:n; jcdiCitche, [cua?. vl. 

depose as is very often done in the modern Indian 
Courts. This carried to such an extreme 
liniit that witness whose inedibility alone 
wmitH according to modern law be questioned 
were- barrUd Elf; legally incompetent witnf=fifl«i 
though thf? an^tent. Hindu IfigiiilAtion kept Wall 
in view the modern, distinction between an 
incompetent witness whose testimony is totally 
.shut out and nn untrustworthy witness whoa* 
testimony though received is disregarded- The 
tendency of ancient Legislation in all countries; 
wits to regulate the competency of witness by 
artificial rules of exclusion while the trend of 
modern jurisprudence is to widen the scope of 
oral testimony leaving the determination of 
the credibility to the discretion of the tribe cuthi. 
The framers of the Indian Evidence Act seem 
to have stretched this principle to Its utmutsi 
limits, w that the Indian Act allows evidence 
which is excluded even under the English Law. 
The modern Law of Evidence in India is as 
wide in its range of admissible evidence, as the 
ancient law was narrow in its compass of com^ 
jjetent Lcstimony^ 

t. Ancient Hindu Law preferred women 
witness^ in disputes where women were con- 
carned- Though N&ruda excludes women from 
the eategury of competent witnesses on the 
ground of their natural proneness to lying, still 
it was recognised that their evidence was lifcely 




djui. ji-evl'b- 



tJliJ'. Ft] 






to bs nearer the truth when other woman were 
concerned, 

3. The mode of swearing was adjusted 
.according to the east*' of the witnesses ho that 
the particular form of oath may special! jr appeal 
fcothfir imagination and faith, invLead of on» 
universal, indelible rule being ap-pliod to all 
perSOnH irtEapedtive of their intellectual attain - 
m-enls or religions fuith, without any hind of 
stimulus to their moral instincts;. It is a 
common experience’ in Indian Courts to dpd 
a witness- who is not habituated to penury 
Ln Courts m f used to tiro tactics of cross-exam m- 
inf? counsel to hesitate to answer a Question or 
even to modify his former statement when he is 
asfced to state whether he would positively 
swear to such and such a fact, it shows that 
the common i l iters.^ Indian witness is not so 
alive to the legal mnseiiuences of perjury as ho 
is tn thi? moral or rcSisrinns side of it. The fear 
that he may meet with some calamity or mis- 
fortune in this world or be eternally damned in 
the next is perhaps marc clear to his dim mental 
vision, than the penalty of fine or imprisonment 
in jail of which he has no conception until the 
actual event which may or may not happen. It 
ia perhaps in this aspect of the matter apart 
from the strong religious belief prevalent in 
aifricnt timas, that wc 'have to loot at tho 
method of piPOf known as divine pspof recognis- 




100 



iaCjKUT ULHDCi JCUlCh-TIXH t. [CffiP. Vr 

«3 iti those days as a legitimate legal profit dJ 
Beonlur facts. It must ho observed hy finy 
casual observer aefiu&inted with tli? ndminiatra- 
tinn of justice in this country that perjury has 
increased considerably wilhin the last century 
or so The growing materialistic tun Haneses of 
the ajzf, together wills the decadence of r^ligi- 
ous faith may have perhaps contributed to she 
moral foil of a nation which held tip list ideal 
of fiarischandra to the world- The reason for 
this lapse from ancient ideal may perhaps also 
tie traced to seine extent to the entirety foreign 
legal system which h&n bean introduced into 
t liis cop n try. The ancient s yate m of la w rested 
on the foundations of ethics and religion and the 
method of adducing evidence also had neces- 
sarily to la p t tie eth leal a v d rerl ig ioi it; i nsl E nuts 
of the deponent, This wm one important fan Lor 
in checking perjury, 

4, Another feiinru of the ancient adminis- 
tration was that the judicial assemblies which 
decided disputes se^rn to have been held in the 
very place where the disputes arose or where 
the crime was committed. Evidence was requir- 
ed to be taken on the very land in dispute. The 
party or witnesses who wanted to give false 
evidence had to do it in the presence of hip own 
kith andi kin and neighbours w ho must have 
known all about the truth of the matter life 
perjury wAild have to face a large body of 




'CflAF+VlJ ORAL EPIDliiiCB. 10 1 

public opinion and perhaps incur the risk ctf" 
social oatTatietTj. This healthy influence- uf 
public opinion li d possible FjocisJ ostracism is 
removed when the Oonr-ts are held in distant 
places and amidst alien ^nriundirigs. The 
parly Or witness vivo comes to a big District 
centre nr a Taluk centra dins not care a jot uh 
to what the people in and around the Court 
promisee, think of hie conduct or of his veracity 
loan Indian villager the public opinion of Sit* 
own village in far more important than the 
tfeirere strictLjres of the Judge as- to bis character. 
The ancient safeguards having been removed, 
the provisions of the modem law are not suffici- 
ently |>r(iv unlive. 

5. The ancient system tended to ensure the 
production of the host evidence available. It 
was secured by a process of preliminary eiimi 
nation *f ineligible witnesses and by afford injg 
sufficient protection to the respeet^hle witness- 
es enuipelled to appear. As in modem proce- 
dure, then also (h -3 competency of a witness was 
first decided before the reception of his cvidefioe- 
But the Competency nf a witness ranged over a 
much wider area as stated already and eralii' 
ded even the testimony of witnesses whose 
credibility alone can now be rmefitioned. Thin 
rnigjit have Haved the time of the Court in keep- 
ing out useless evidence, even at the risk of 
occasional e a elusion of relevant evidence 




A&aiifiST annw .HTWCitOfii. [ceiTh Tti 

Sr The rrapevtfibfe treatment which eeeme to 
have been accorded to the witnesses in the 
ancient days was a sufficient inducement to call 
forth disintcnefttert evidence. It i* wall admitted 
by every body acquainted with the working of 
the present Indian Courts that r&spectaU e wit- 
neftees try to avoid the w Uneas box. The ancient 
rule which punished reCkEess- discrediting oi 
t e?t ihlOhy stands in y treking contrast with the 
nindf-rn Law which allows considerable latitude 
in injJJeaching ihe testimony of a witness. This 
latitude which is perhaps jratified in view 
of the higlier interests of justice requires 

however to he safeguarded with certain limi- 
tations. The Indian Exddenre Act no doiibt- 
clothes the WitnrfB^FS with certain privileges 
unknnwnjjto ancient jurisprudence hut it does 
*sOt pay sufficient heed to the feelings of a 
sentimental people tike the inha hi tints of, this 

country. In other COUn tries where the Bar has 
iieon an organic growth along with the develop- 
ment of legal institutions! it lias attracted to 
itself certain tradi tions and a certain standard 
of professional etiquette and such environments 
always afford sufficient guarantee against ttie 
abuse of privileges. In India the fin r has been 
an extraneous importation and its rights and 
I Labilities have to he sought within the font 
corners of the statute Law, apart from any 
iilcg Lance to professional tradition, The pro- 




DX1L KTI UICT £ . 



flmfcr, ti.J 



iVli 



fwwiona] public opinion, if any, is too often 
sdlsot and too feeble to assert itself. The party 
uLo is more of ton swayed by spite than by any 
regard to fairness. Under these circumstances,, 
them? is the danger of the liberty iHlowed to a 
party degenerating into a license for the reckless 
harassing of a witness. Modern Indian kaw 
permits any imputation being made with respect 
to the character of a witness who lias entered 
ihe witness box with impunity though there is 
net the slightest basis for it. A. respectable 
wi lochs subjected to such humiliation has to go 
without a remedy. To a witness regard for bis 
feelings is as important as the result of a suit to 
a party. The Indian Evidence Act does not go 
far enough in affording protection to respect- 
able wicn esses- 'There is no reason why modem 
legislation should not devise some remedy to 
CQtmtyraci any tendency to abuse the privilege. 




CHAPTER VI L 

LEKHYA PRAM ANA (DOCUMENTARY 
EVIDENCE), 

Out of tbo three kinds of srriftn7mT!*T (Ma- 
nushika Pramama) human forms of proo^ proof 
by evidence of f>ofs^'ssion and of witnesses have 
been dealt with. There ramams tho third form 
of proof by me*ns’of df^-omcnts c-alkd Lckhya 
Prainana ; ^EqipfruT}, 

Lekliya fc of two kinds fl! crj)*3!r Raja- 
keeyn { public document! ;. (3> or =TT^T^: 

Laukilca or Janap di. -'private document}- 1 

P0BUC DOCC-VIENrS. 

Public documents rn >-y he 
1- Sibissna (gvanE) *TTtR. 

£, Jayapatraljudtjinentor decree -Tqw, 

A 

n. AyiiapatrtL ''order) SttOTffl 1 , 

4. Fvagnapatra .retinas^ 

Hhasana documents relate to ^ifta of Land? or 
of revenue. The Rift of revenue is called 
Nihandha. in limes of connuest or treaty by 

’ .Mitnbsfora, p ,1^9, 

* V^BLibU In Srarhlii- Ob- p- 1 2^-. 




CBiF. T L]. j l.E H H VA h' KAYA^>.f[iHCn^rEW' Jl ST HVIUBSOS), iO'-> 

cHe sovereign with another,, it was usual to in-sist 
op the giant of lands or revenue. The gift of 
revenue look the form of a dog-omen t by which 
the JMffih&nlS, agriedtmriHt^ and other working 
daises were directed to make a certain monthly 
Or yoarly contribution towards some templo, 0T 
charily, or to learned Brahmans. These granite 
were inscribed Oti copper plates or tablets with 
the aigniturr of the -person making the gift and 
tile snaE and the signature of the king who was 
rMpoosible for the grant. They contained the 
conditions and object* of the ^rant toother 
With the fuli, description Of the family, euale^ 
and the names of the grantor and grantee, and 
the tirPeof the |tft*t± n t-J 1 The grants made by the 
king h : mSclf contained bis seal and signaturs 
alone and the name of the scribe.* These docu- 
ments were rorm i red not to give validity to the 
gift itself which was completed by the accept- 
ance but for securing their permanence. 1 

Thu next class of public (Lo;:u:ti ants whjj 
tha Jayapitra f judgment or decree). it w,*a 
award&i not only to the successful claimant 
for ensuring his rights but also to tha defeated 
party for collecting tlie prescribed fines. While 
til# t-yrm Jayaputra specifies in general all 

* Smritbi Ch. p. !£l>, 

1 *Vjaea ; Soirirti Cb. fn. i !!?< 

J Giambi Oil. p. li.v 




Hki 1„1C L jri'I HlSUfC JDBICiWBIr fillUP, 711 

tss including tluwfi passed on admission, 
tho term <rajrf*R (PasebatEikara: is used by Ka. 
tyayana with reference to contested judgments 
Siac'hi Jayapafra contained briefly the allega- 
tions of b&fli the parties, the evidence adduced 
in proof thereof, and the conclusions. of the 
assembly with their reasons, based upon the 
particular texts of the Krrtritie governing the 
ca». The opinium uf the members of the 
aeBembly or of the President, or of the king 
were required to he written in their own 
hand . 1 It was granted fo the party with the 
seal of the king affixed. Much public documents 
bearing the signature and the Roal of the king 
Ora in themselves proper evidence of the matters 
to which they relate.* 

The other two kinds of public documents 
relate to orders WTSTT hy the king tn his servants 
and tributary chiefs anrl also r*guB£t£ ETih to 
bh; spiritual adviser and priest and other vener- 
able DOrSCne and independent priideet 1 

PRIVATE COCO MEN T&. 

Laukikn or private documents were classed 
either as (Swakrila) Written by one self 

with or without Any attestation of witness, or 
(Anyakritaj written by another and 

' Vjtrwi. ind UrihiiipiitE | Ob. pp« 129- fls IflO, 

I M Ltikutflrp, p, 162 . 

II ViHPbEa iL Srarilbi Cb, p, 131 . 




iviMNOt ]107 

at-tosied tiy Huns witnesses.' The absen ce n f 
attestation invalidates the; latter. 1 Thcb& d OCU- 
msnttt must he wiitlvn in vlsar characters and- 
in intelligible language,* They must specify the 
year, month, Paksha {solar half or lunar Half), 
data, the iisme? of the obligor and the ohligee 
and thear fathers, their caste and Ootra, and 
other particulars about the amount lent, 
fate of interest, and time of repayment, for.* 
After e sedition, the- obligor Rhall stale at the 
CndabOYe his signature that It has been e reent- 
er! with his consent, The witness also shall 
sign giving their fathers name curd slating 
that they are witnesses to- the said transaction. 
If the executant or the witness is unable 10 
write, he shall get another witness to write for 
him in the presence of the other witnesses? 
The writer of the document shall state at the 
e-nd giving algo his description, that it Iluh boon 
written hy him with (he Cimkent ofhoth parties. fl 
Usually every document containing the names 
of both parties, two witnesses, and the writer is 
called qw? 1 ? Pa nebs rood ha l having 5 persons} 

1 Karadu, Ch. III. r. 131. 

1 Sr: n[ Li C'3 . P . 1 t'J, 

■ S&wito, OK TIL T . n&, 

* TiglHi., PnJi 11, Ob . V 1 1 . t . 0-t: M :!iiHhir;L, sinpH I(jO, 

* Harads, foptfitd Cb p. 334. 

* T*tfta Ft II. (3b. VII. r. iS to £3. 




tos AKreiiMT fllNIJU [fliiF, FfU 

The witnesses may be ter*) in number or multf- 
pies of two according to the usage of th* 
country 1 

Th*r* »ro 8 Icifidt of document 

accord] n g- to Vyaea , I including tbe t.wn binds of 
documents above deBoribed called ftwafcrita 
a lid Anyakrila, also described as’Swahasta 
and Chceraka, (Wist and there a™ ten 

varieties of thorn enumerated by Vyasa and 
Prajapati, viz, : 

1 . Receipt ^wrdisftr^Tf (Upa^atb), 

£, Ad hi patra [mortgage ) 

Kiayapaira (sale} 

4. Sihithipatra fedfriT, 

■b Sandhi pjitm 

6. Viahudhi patra 

7. Vibhagha patia {deed of paction} 

ftapnw, 

5. Dana pairs (deed of gift} 

Sb Dasn pa fra 

JO, Document settling boundary dispute 

(Cheemkaj is tire name applied w> docii- 
men is written by recognised document- writers 
of any place, The Upagathn 1'reeeipt) is uaual- 
ly written by the person making tha pay-: 
tnent and signed by. the peraon receiving Hr 

! Mi'afctbaM, pp. 159 ft ISO* Bmrftfci Oh- P- L3*. 




CEiFhVir-] Ltnrt Fi£i»AaA(i>ocoBij*r>pT ivintpcsuw 

Tbft Siithipfitri is an agreement entered into 
bttnMQ merchants* townsmen, and other col- 
lection of Individuals fiKiitg a certain mode 
of odnduot among tJiemstilvfts. VjEjiudhi pair;* 
ttga a document awarded to a : psrrty whfi 
underwent certain purificatory oeremonire for 
some offences. Dasapatra (slavery bond) was 
a bond eHeeuted by ft man haying no food 
OV raiment in m Toroid to anotiisr agreeing 
to do rertain aetish Bsemavivadapatrs 
Settled boundary deputes and was perhaps in 
tho nature of a plan The other documents 
evidencing gift, s&alo, aud mortgage do not call 
for any description. Parti cion deed mitered 
into with the consent oT at] the eiiaratfs and 
attested by witnesses alonnia valid. Otherwise 
tf¥Cn if the father hi. Trisidf SKOCUtcS it. it is not 
valid. Accord in g to fti : k r.i nee tli i the other pri ■ 
vate d-ocuments relating to gift, sate and 
purchase of immoTeahle property also dopendad 
for theif validity upon the consent of co-sharans 
and the atteBtatbn of the chief men of the 
village 1 . 

In all theeo private trftnsacti ns, docu- 
mente are insisted o« us placing the matter 
beyoifd all doubt whenever future dispute? 
should arise. It follows, therefore that a peic^n 

1 Smrahi Cb pp. 195 & |J& 

1 Sain Witi Oh. if. e. v, t, m it m r 




lit) ASCjIjrr tL L EH LTJ JfMCilCBt [CETJlF, «1I, 

receiving a gift gkould not write the gift deed 
himtelf nor should a. creditor write the debt 
bond. On account of their usefulness. in 
terminating' future disputes, documents Sire 
fTtert pontlittad to be renewed, whaitOVOr 313003- 
flery 1 . 

The Sivakrita document written by the 
obligor himself though unattesied by witnesses 
improper evidence unlen it has been brought 
about by force or fraud or fear or in toric&lioh 
and such other cuii&ee 1 *. Ajccordinjjj to Warada, 
document written under aueh circumstances as 
wolf ns t-hfwie eyeented by women and children 
are not proper evidence 15 - Thews invalidating 
circumstances apply to Auyakrita documents 
aa wall. 

JVhn-prodiiCfi&a of dozum/mt# : — When the 
document IF not available for settling the 
future dispute hetween the parties, It may be 
renewed with the onnsent of both parties. It 
may not be a vailablfeeUher hsennso il [a kept In 
a distant country, or because its characters arc 
not legible or the language iin intelligible, or 
because it is lost or because it has become faded, 
or hss been stolen, burnt, mutilated, Or torn to 
pieces*. Under those eSrcumsteneea, it iriay bo 

1 SmritlLi Ob. p. ltt. 

* jijiii pi. ii. ct. yu. f. bb. 

* JfuradaCfc, III. T. I3t r 

Yagui Pi. 11, Cfa. Pit. T.gl. 



4 




«(Uf Tai.lLIEliTA I'.liH I l ih".', ( DMt NT Ji IlT ITTH K5TCIE). I I 1 

renewed, if the Olhtir party is Willing to do it. 
If not, th& party relying on it should be allowed 
flufficiunt lime- to produce it, for the settlement 
af the dispute 1 , When it ir iti an Inaccessible 
plaEit*, or lout, -or destroyed, it may be proved by 
the evidence of witnesses who lia-ve attested it?. 

rMt?rimna.fion *jfih& Qsntiimm^s and validity 
of : — Interpolation of wordi or 

nOrltc [ic:i'H aa well a* Other B-usnioi^as riroum- 
stanc-fiS may throw doubt on the genuineness 
■of a document. Doeu meats looking fresh 
though. purporting to be old and faded dueu- 
meniu tliou|:h recently erecutisd require scru- 
tfcny*. Aim document* e*ecu led in death-bed, 
or at nights, or by women and children „ under 
some fraud, tear, nr force, or under mental din- 
tress or uticonaciousnay! are not valid, These 
d ESabili tiftS attach also to the writer and the 
attesting witnea^iefi , . Documents written or 
attested by persons of had character may he 
auajpeclnd to he apuriewr, These latent defects 
iitu invaOda ting circa m&tancea must he pointed 
«gs hy the parties to the Court only before the 
inclusion of the trial, while the CoufEh am 

* Militetnri p. 161. 

* Kindi Oh. 111. ?. 1«, 

* Ksi^rw* ind E^jflfriha t& Suritbi Ob. p, HI 

* BdLa^it', Xalj M>aca and Wired*. 

* Kav.aviLn, Srcrittl L-b, p. L-iU-